Filed 5/23/13 Marriage of Bradley and Lind CA4/1

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



In re the Marriage of WILLIAM ROBERT
BRADLEY and BEATRIZ LAURENTINA
LIND.
                                                                 D059945
WILLIAM ROBERT BRADLEY,

         Respondent,                                             (Super. Ct. No. DN131119)

        v.

BEATRIZ LAURENTINA LIND,

         Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Richard G.

Cline, Judge. Affirmed.

         Kehr, Schiff & Crane and Joe Schiff for Appellant.

         Trope & DeCarolis and Patrick DeCarolis, Jr., for Respondent.

         This action involves the interpretation of language in paragraph 7.4.1 of a

premarital agreement between appellant Beatriz Laurentine Lind (Laura) and respondent
William Robert Bradley (Robert)1 that detailed the parties' rights regarding certain real

property owned by Robert.

       The premarital agreement also provided that Laura would receive $3 million from

Robert shortly after the marriage. Approximately six months after the parties married it

was decided that a house would not be built on the property described in paragraph 7.4.1.

       Robert filed an action for martial dissolution in December 2003.

       Thereafter, Robert brought a motion for summary adjudication seeking to have the

property located on Camino Sierra del Sur in Rancho Santa Fe (the Rancho Santa Fe

property) declared to not be the joint residence and for a finding that Laura was not

entitled to any money or damages from the sale of property located on Tierra Del Sur in

San Diego (the Tierra Del Sur property). The motion for summary adjudication was

denied and the case was thereafter set for trial.

       Prior to the commencement of trial, both parties filed motions in limine regarding

the admissibility of parol evidence to interpret paragraph 7.4.1. Robert sought to prohibit

the use of parol evidence in construing that paragraph. Laura's motion in limine argued

that (1) the disputed provision of the premarital agreement was unclear and ambiguous,

and (2) therefore parol evidence should be admitted.




1      We refer to the parties by their middle names as they do themselves. We intend
no disrespect.

                                              2
       The trial court granted Robert's motion in limine, finding that "[t]he agreement is

clear and unambiguous. Extrinsic evidence is barred with regard to the intentions of the

parties expressed in [paragraph] 7.4.1 of the prenuptial agreement."

       Once the court ruled on these motions in limine, Laura sought to have the judge

who heard Robert's motion for summary adjudication rule on the motions in limine (the

case had been reassigned for trial). The court denied this request.

       On appeal, Laura asserts that (1) parol evidence should have been admitted

consistent with the court's order denying Robert's summary judgment motion; and (2) the

court did not comply with the procedural mandates applicable to reexamination of

Robert's motion for summary judgment. We affirm.

                  FACTUAL AND PROCEDURAL BACKGROUND

       Laura and Robert married on July 30, 1999. Robert filed for dissolution of the

marriage on December 31, 2003.

       A. Facts Occurring Prior to Marriage

       In May 1998 Robert purchased the Tierra Del Sur property, with title taken in the

name of "Via Del Mar, LLC," a limited liability company formed by Robert for the

purchase.

       On July 28, 1999, the parties entered into the premarital agreement. Laura had at

least two different attorneys representing her in connection with drafting of the premarital

agreement and there were "many" drafts of the premarital agreement before it was signed

by the parties.



                                             3
       The premarital agreement provided that all property acquired prior to or during the

parties' marriage would remain the separate property of the person acquiring it except as

expressly provided otherwise in the premarital agreement. The only exception was

paragraph 7.4.1 which describes the "Joint Residence" as the Tierra Del Sur property and

provides as follows: "Upon the marriage of the Parties, Robert shall transfer into the

joint names of the Parties the real property described in Exhibit D (hereinafter the

'Residence' or 'Joint Residence'). [Laura] shall designate how she will hold title to her

interest in the Residence (however, she may not hold title as a joint tenancy). It is

Robert's and [Laura's] intention that a home will be built on this property in which they

both shall live - although the Parties have looked at and are considering other places to

purchase a home. The Parties will each have input with regard to the operations of the

Residence, and the Parties will consult with one another on all major issues regarding the

residence, but Robert will make the ultimate decisions. [¶] Presently, Robert has invested

$1,035,647.63 in purchasing the real property for the Residence. In the event Robert (or

his estate) exercises any right to acquire [Laura's] interest in the Residence, or upon sale

or other disposition of the Residence, Robert shall either receive a credit against any

payment due to [Laura] or her estate (e.g., in connection with any payments due under

Sections 6.3 of 7.4.3), or shall be reimbursed the amount he has invested [in] said

Property, from any sale proceeds. [Laura] has the right at any time to acquire one-half of

Robert's equity in the land by paying Robert one-half of his investment in the Residence

(e.g., per Exhibit A, $517,824). Except for this limited right of contribution or credit, the

equity in the real property and the residence constructed thereon shall constitute the Joint

                                             4
Residence, and shall be community property. To the extend [sic] that Robert uses

separate property funds to pay construction costs he shall not be reimbursed for such

expenditures." (Italics added.)

       The premarital agreement also states in paragraph 2 that: "It is the Parties' desire

that the properties owned by each Party prior to marriage shall remain separate property

and that the other shall acquire no interest in these properties by virtue of their marital

relationship, except as expressly provided for in this Agreement. Thus, each Party

preserves certain assets as his or her separate property to the exclusion of the other and

waives certain property rights that he or she would or might acquire in the property of the

other, and these benefits and waivers, along with the consideration in Sections 7 and 8 for

the consideration for this Agreement."

       The only exception regarding what property would be community property is set

forth in paragraph 7.4.1, set forth ante, as "the real property described in Exhibit D

(hereinafter the 'Residence' or 'Joint Residence')."

       Paragraph 5.1.8 of the premarital agreement also states, in all capital letters: "IT

IS THE INTENT OF THE PARTIES THAT ABSENT A SPECIFIC WRITTEN

AGREEMENT NO COMMUNITY PROPERTY SHALL RESULT FROM THE

MARRIAGE OF THE PARTIES. TO EMPHASIZE THE IMPORTANCE OF THIS

ENTIRE SECTION 5.1 AND SUBPARTS THEREOF AND THIS SECTION 5.1.8,

THE PARTIES SHALL INITIAL BELOW. FURTHER, BY INITIALLING, THE

PARTIES ACKNOWLEDGE THAT THEY HAVE BEEN ADVISED OF THEIR

RIGHTS RELATING TO COMMUNITY PROPERTY, AND FULLY UNDERSTAND

                                              5
THEIR RIGHTS, AND AGREE TO WAIVE THEIR COMMUNITY PROPERTY

RIGHTS."

       Paragraph 14.4 states: "The Parties recognize the possibility that they may discuss

from time to time the possibility of altering or amending the terms of this Agreement

(e.g., by acquiring jointly-owned property, or entering into a partnership or joint venture,

etc.). It is specifically agreed that any statements made during those discussions, whether

or not phrased in terms of promises, agreements, representations, or otherwise, shall not

be binding, and shall be null and void, and of no force and effect, and shall be considered

as discussions only, unless and until they are reduced to a written agreement signed by

both Parties. [¶] The Parties recognize the possibility that each Party may, from time to

time, act in such a way and engage in such conduct as to lead the other to believe that he

or she intends to alter or amend the terms of this Agreement. It is specifically agreed that

any such act or conduct by either Party shall not be binding, and shall be null and void,

and of no force and effect, regardless of the inference drawn therefrom by the other Party,

in the absence of a written agreement signed by both Parties setting forth the Parties'

understanding."

       Paragraph 14.3 states : "This Agreement may not be amended or terminated

except by an in instrument in writing, signed by each of the Parties. No failure to

exercise and no delay in exercising any right, remedy, or power under this Agreement

shall operate as a waiver thereof. No modification, alteration, or waiver of any term,

covenant, or condition of this Agreement shall be valid unless it is in writing and signed

by each Party. The Parties understand that oral promises or promises inferred from

                                             6
conduct, which would modify the terms of this Agreement, will not be binding on either

Party. The Parties have been advised that they should obtain the advice of independent

counsel prior to entering into any future agreement between them."

       At the time the parties signed the premarital agreement, Robert had already

entered into escrow to purchase the Rancho Santa Fe property through Anasazi Retreat,

LLC, an entity formed by Robert for the purchase of that property.

       B. Events Occurring After Marriage and Prior to Separation

       As stated, ante, the parties married on July 30, 1999. The following month, on

August 17, 1999, escrow closed on the Rancho Santa Fe property and the parties moved

in and resided there during their marriage.

       In 1999, Robert decided not to pursue developing the Tierra Del Sur property.

Robert testified that he lost faith in his ability to develop the property, there were

problems that came to his attention regarding a road that needed to be improved, the City

of San Diego gave him a two-page document of requirements, and there was a wind

problem. In March 2000, while married and living with Robert, Laura filed a lawsuit

against him regarding the Tierra Del Sur property and recorded a lis pendens on the

property. The lawsuit was ultimately dismissed by Laura on February 20, 2001, and the

lis pendens was expunged.

       On December 4, 2001, the Tierra Del Sur property was sold to the person from

whom Robert had purchased the property for the same price he had paid for it. Prior to

the property being sold, Laura was presented with an opportunity to purchase the



                                               7
property on the terms detailed in the premarital agreement, but she chose not to exercise

that option.

       C. Events Occurring After Separation

       On December 31, 2003, Robert filed for dissolution of marriage. Laura and

Robert continued to reside at the Rancho Santa Fe property during the separation with

Robert paying all of the expenses.

       On December 1, 2006, the Rancho Santa Fe property was sold for $7.9 million.

Laura subsequently claimed that that the Rancho Santa Fe property should be

"substituted" for the Tierra Del Sur property.

       D. Motion for Summary Adjudication

       On September 28, 2009, Robert filed a motion for summary adjudication

requesting "[t]hat the Court summarily adjudicate and find as follows: [¶] (1) That the

residence [on] Camino Sierra del Sur in Rancho Santa Fe, California, also known as

'Rancho Santa Fe,' is not the joint residence of the parties, as described in paragraph 7.4.1

of the Parties' Premarital Agreement; and (2) That Respondent is entitled to no money or

damages from the sale of the property located [on] Tierra Del Sur in San Diego,

California, also known as 'Via Del Mar.'"

       On December 4, 2009, the court (the Honorable Sim Von Kalinowski) denied

Robert's motion, finding that "there are triable issues in this case, including, but not

limited to, the issues of whether or not the Rancho Santa Fe home was a substitute

property and whether or not there were damages for not developing the property at Tiare



                                              8
[sic] Del Sur. The Court further finds that parol evidence will need to be presented at the

time of trial." (Italics added.)

       E. Motions In Limine

       On September 20, 2010, Laura served Robert with a list of exhibits she intended to

introduce at trial, along with copies of the exhibits. Laura sought to introduce various

correspondence relating to the negotiations and execution of the premarital agreement, as

well as various drafts of the premarital agreement.

       Thereafter, Robert filed a motion in limine which requested that the court (the

Honorable Richard G. Cline, the matter having been reassigned for trial): (1) order Laura

not to introduce into evidence any documents interpreting the parties' premarital

agreement or concerning the parties' negotiation of it, including drafts of the agreement

and letters relating to its negotiation and preparation; (2) order Laura, her counsel, and all

witnesses to refrain from referring to those documents; (3) order Laura not to introduce

into evidence any documents concerning a hypothetical residence; and (4) order Laura,

her counsel, and all witnesses to refrain from referring to a hypothetical residence.

       Laura opposed that motion and also filed a motion in limine, requesting: (1) an

order declaring the language of paragraph 7.4.1 of the premarital agreement was

uncertain, ambiguous and/or unclear as to the meaning and interpretation of its terms

requiring the use of parol evidence (extrinsic evidence) to determine the meaning and

interpretation of paragraph 7.4.1; (2) an order allowing Laura and Robert to introduce

parol evidence, consisting of written documentation and/or witness testimony, to

determine the meaning and interpretation of the terms of paragraph 7.4.1 of the

                                              9
premarital agreement to conform to the intent and understanding of the parties; and (3) an

order overruling or denying any objection to or motion in limine by Robert to preclude

the use of parol evidence to determine the meaning and interpretation of paragraph 7.4.1

of the premarital agreement.

       Specifically, Laura argued that paragraph 7.4.1 of the premarital agreement (1)

should be interpreted to show that Robert was obligated to build a joint residence on the

Via Del Mar property or, (2) alternatively, that paragraph 7.4.1 should be interpreted to

mean that Robert was obligated to provide a substitute residence and that the substituted

residence was the Rancho Santa Fe residence.

       F. Court's Ruling

       On January 10, 2011, the court granted Robert's motion in limine and denied

Laura's. In doing so, the court found that the premarital agreement was fully integrated,

not susceptible to the interpretation proposed by Laura, and was clear and unambiguous.

The court found "[e]xtrinsic evidence is barred with regard to the intentions of the parties

expressed in [paragraph] 7.4.1 of the prenuptial agreement. Further, [Robert's] Motion in

Limine to exclude evidence of the 'Hypothetical Residence' is granted."

       Trial was held in January 2011.

       On January 25, 2011, the court granted Robert's motion for judgment pursuant to

Code of Civil Procedure section 631.8 and found in favor of Robert and against Laura.

       On March 1, 2011, the court issued a statement of decision making the following

findings: "1. At relevant times, [Robert] never had a legal obligation to build a residence

on the property located [on] Tierra Del Sur San Diego California. [¶] 2. At the relevant

                                             10
times, [Robert] had no obligation to provide a substitute residence in lieu of the Tierra

Del Sur residence. [¶] 3. [Laura] is not entitled to any funds from the sale of the Tierra

Del Sur residence in light of her failure to exercise her right-of-first refusal. Further,

[Robert] engaged in an arm's length transaction with the former owner of the property in

connection with the sale by him of the Via Del Mar property. [¶] 4. The Rancho Santa

Fe property is not a substitute residence for the joint residence set forth in paragraph 7.4.1

of the premarital agreement. [Laura] is not entitled to any share of the proceeds of that

residence or any other alleged substitute residence. [¶] 5. All monies held in a trust in an

account that [Robert] established per court order in this action are the property of and

shall be released to [Robert]. [¶] 6. [Laura] has failed to establish her defenses to the

petition. [¶] 7. [Robert] is entitled to judgment and to his costs as set forth."

       On March 23, 2011, judgment was entered in Robert's favor consistent with the

court's decision.

       This timely appeal follows.

                                       DISCUSSION

                                I. STANDARD OF REVIEW

       The determination of whether the parol evidence rule applies so as to preclude

extrinsic evidence concerning the mutual intention of the parties is a question of law

subject to de novo review. (Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861,

865; Fischer v. First Internat. Bank (2003) 109 Cal.App.4th 1433, 1443.)




                                              11
                                        I. ANALYSIS

       A. The Parol Evidence Rule

       The parol evidence rule is codified in Code of Civil Procedure section 1856 which

provides that the "[t]erms set forth in a writing intended by the parties as a final

expression of their agreement with respect to such terms as are included therein may not

be contradicted by evidence of any prior agreement or of a contemporaneous oral

agreement." Further, Civil Code section 1625 states that "[t]he execution of a contract in

writing, whether the law requires it to be written or not, supersedes all the negotiations or

stipulations concerning its matter which preceded or accompanied the execution of the

instrument."

       "Although the parol evidence rule results in the exclusion of evidence, it is not a

rule of evidence but one of substantive law. [Citation.] It is founded on the principle that

when the parties put all the terms of their agreement in writing, the writing itself becomes

the agreement. The written terms supersede statements made during the negotiations.

Extrinsic evidence of the agreement's terms is thus irrelevant, and cannot be relied upon.

[Citation.] '[T]he parol evidence rule, unlike the statute of frauds, does not merely serve

an evidentiary purpose; it determines the enforceable and incontrovertible terms of an

integrated written agreement. [Citations.] The purpose of the rule is to ensure that the

parties' final understanding, deliberately expressed in writing, is not subject to change."

(Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Assn. (2013) 55

Cal.4th 1169, 1174 (Riverisland).)



                                              12
       Application of the parol evidence rule involves a two-step analysis: (1) "[W]as the

writing intended to be an integration, i.e., a complete and final expression of the parties'

agreement, precluding any evidence of collateral agreements?" (2) "[I]s the agreement

susceptible of the meaning contended for by the party offering the evidence?" (Gerdlund

v. Electronic Dispensers International (1987) 190 Cal.App.3d 263, 270.)

       B. Integration

       Laura does not dispute that the marital settlement agreement is a fully integrated

agreement. Therefore, we need only address the second step of the parol evidence

analysis.

       C. The Court's Exclusion of Extrinsic Evidence

       Under the second step of our analysis we determine whether the extrinsic evidence

offered by Laura serves to prove a meaning to which the language of the instrument is

reasonably susceptible. However, in this case, Laura sought to introduce evidence that

would alter the terms of paragraph 7.4.1 of the premarital agreement. Laura sought to

change the word "intention" to "obligation." Laura also sought to insert a new clause in

the agreement requiring Robert to provide a substitute residence. Therefore, the court

properly excluded Laura's proffered extrinsic evidence.

       "Under the parol evidence rule, extrinsic evidence is not admissible to contradict

express terms in a written contract or to explain what the agreement was." (Sunniland

Fruit, Inc. v. Verni (1991) 233 Cal.App.3d 892, 898.) "The agreement is the writing

itself." (Ibid.) "Parol evidence cannot . . . be admitted to show intention independent of

an unambiguous written instrument." (Ibid.)

                                             13
       Laura contends that the court should have admitted her parol evidence for the

limited purpose of determining whether an ambiguity existed in the premarital agreement.

However, the court found that the premarital agreement was completely integrated,

unambiguous, and not reasonably susceptible to the interpretation proffered by Laura.

Thus, the court was not required to admit Laura's parol evidence.

       By way of example, in Malstrom v. Kaiser Aluminum & Chemical Corp. (1986)

187 Cal.App.3d 299, the Court of Appeal held that when a contract was integrated and

provided that it superseded all prior agreements, evidence of an implied agreement which

contradicted the terms of the written agreement was not admissible, stating: "'[I]f the

court decides in light of this extrinsic evidence that the contract is not reasonably

susceptible to the offered interpretation, then the evidence is irrelevant and inadmissible

to interpret the contract.'" (Id. at p. 316.)

       Laura also asserts that the court erred in giving a "precatory" meaning to the word

"intention," in paragraph 7.4.1 and should have looked at the entire clause of paragraph

7.4.1. However, the court did not just focus on the word "intention." Rather, in its

statement of decision the court stated: "Following are some, but not all of the factors

supporting the court's decision regarding interpretation of paragraph 7.4.1 of the

premarital agreement. The separate property of each of the parties is clearly described in

the agreement. This includes the Rancho Santa Fe property. Any claim of [Laura] to this

property necessarily involves a transmutation. The contract includes a complete

integration clause. The various obligations of the parties are clearly set forth in

mandatory language. The disputed language in paragraph 7.4.1 clearly is not mandatory

                                                14
in nature. The word 'intention' by definition does not connote an 'obligation.' The

limitations on [Laura's] right to community property are clearly set out. Her right to a

community property interest in Via Del Mar, on the other hand, is clearly spelled out and

is limited. In several places the premarital agreement clearly specifies the limits upon

transmutation of separate property into community property; transmutation cannot occur

by acts [or] words alone; transmutation will occur only by a writing and only by the

construction of a residence on the Via Del Mar property. Use of the word 'intention' is

consistent with [the] remainder of the sentence and the paragraph: there is no obligation

to build on Via Del Mar and other property is being considered for a residence. The

paragraph contains an expression of current intention, not a future obligation." (Italics

added.)

       Laura's reliance on Holmes v. Lerner (1999) 74 Cal.App.4th 442 is also

unavailing. Holmes dealt with the enforceability of an oral agreement, specifically an

oral partnership agreement, not a fully integrated written agreement as we have in this

case. Further, Holmes did not address intent, but an actual verbal agreement. As the

Court of Appeal in Holmes stated: "Holmes was not seeking specific enforcement of a

single vague term of the agreement. She was frozen out of the business altogether, and

her agreement with Lerner was completely renounced. The agreement that was made and

the subsequent acts of the parties supply sufficient certainty to determine the existence of

a breach and a remedy." (Id. at p. 459, fn. omitted.)

       Laura's reliance on Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th

793 also does not support her position. As Laura states in her opening brief, Weddington

                                             15
merely stands for the proposition that an agreement is formed if the parties agreed on the

"same thing in the same sense." (Id. at p. 811.) In this case the premarital agreement

clearly states the parties' mutual intent.

       The two other cases cited by Laura also do not support her position. Laura cites

Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547 and Magpali v.

Farmers Group Inc. (1996) 48 Cal.App.4th 471 for the proposition that "statements of

intention to act . . . are in the nature of promises." However, in Yield, supra, 154

Cal.App.4th at page 575, the Court of Appeal stated that in order to prevail on a claim of

fraud, a party has to "introduce evidence sufficient to persuade the trial court that at the

time defendants entered into the asset transfer agreement, they lacked the intention to

perform their undertakings." (See 5 Witkin, Summary of Cal. Law 10th ed. 2005) Torts,

§ 781, p. 1132 ["A declaration of intent, although in the nature of a promise, made in

good faith, without intention to deceive, and in the honest expectation that it will be

fulfilled, does not constitute fraud, even though it is not carried out.".) Magpali, supra,

48 Cal.App.4th at page 481 stands for the same proposition. However, in this case, the

court found that Laura failed to establish her claim of fraudulent misrepresentation.

       Laura next asserts that paragraph 7.4.1 is reasonably susceptible to the meaning

she seeks to ascribe to it. In her opening brief, Laura recites all of the parol evidence she

sought to admit in support of her position. However, this evidence is not admissible if

the court has determined that the document at issue is fully integrated and not reasonably

susceptible to the meaning offered by Laura, which is what the court found in this case.



                                              16
       Laura contends that the court did not comply with applicable "procedural

mandates" in ruling on the motions in limine, which amounted to a "reconsideration" of

Robert's motion for summary adjudication. However, Robert and Laura both filed

motions in limine, placing the issue of admissibility of parol evidence before the court.

       Moreover, as the California Supreme Court stated in Le Francois v. Goel (2005)

35 Cal.4th 1094, 1104-1105 (Goel), a restriction on a court's ability to sua sponte

reconsider its own rulings "would directly and materially impair and defeat the court's

most basic functions, exercising its discretion to rule upon controversies between the

parties and ensuring the orderly administration of justice. Courts are empowered to

decide controversies, a power derived from the state constitution. We are hard pressed to

conceive of a restriction that goes more directly to the heart of a court's constitutionally

mandated functions." Although the high court agreed there could be limits on a party's

ability to file repetitive motions, it did not limit a court's ability to reconsider a prior

ruling. (Id. at p. 1107.)

       In Goel, the defendants moved for summary judgment. The court denied the

motion, finding that the plaintiffs had raised a triable issue of fact. Thereafter, the

defendants again moved for summary judgment on the same grounds. The motion was

originally scheduled to be heard by the judge who had heard the first motion, but

thereafter, was transferred to a second judge, who granted the motion. (Goel, supra, 35

Cal.4th at p. 1097.)

       The plaintiffs appealed, asserting that the court's reconsideration of the motion for

summary judgment was improper. The Court of Appeal affirmed, holding that the trial

                                               17
court "had inherent power derived from the California Constitution to consider the

second motion." (Goel, supra, 35 Cal.4th at p. 1096.) The California Supreme Court

affirmed the Court of Appeal's decision, holding that while a party may not make

renewed motions not based upon new facts or law, nothing "limit[s] a court's ability to

reconsider its previous interim orders on it own motion, as long as it gives the parties

notice that it may do so and a reasonable opportunity to litigate the question." (Id. at pp.

1096-1097.)

       Laura's assertion that the trial court did not provide her with adequate notice and

an opportunity to be heard is also misplaced. Laura herself filed a motion in limine

putting the issue squarely before the court. In her motion in limine, Laura also asked that

the trial court "consider all opposition pleadings, declarations and exhibits and legal

authority filed by [Laura] in connection with the Motion for Summary Judgment as

further support of [the] Motion in Limine." In addition, Laura filed a response to Robert's

motion in limine on the same issue and addressed it in her reply memorandum of points

and authorities.

       Laura's argument that the motions in limine should have been heard by the judge

who heard the motion for summary adjudication is also unavailing. The case was

assigned to Judge Cline for trial. However, Laura did not request that the case be

transferred back to the judge who denied the motion for summary in her motion in limine,

or opposition to Robert's motion in limine. Rather, Laura did not make this request until

after the trial court had ruled against her motion in limine. The fact that Laura did not

object to Judge Cline hearing her motion until after Judge Cline ruled on her motion

                                             18
prevents her from now arguing that the motion should have transferred back to the judge

who had previously heard the motion for summary adjudication.

       Laura also argues that Judge Cline was not allowed to "overrule" the decision of a

different judge in the same case. However, Judge Cline was not ruling on another motion

for summary adjudication, but on motions in limine that were presented to him by both

parties. An order denying summary adjudication "simply establishes the existence of a

triable fact when the order was made." (Weil & Brown, Cal. Practice Guide: Civil

Procedure Before Trial (The Rutter Group 2012) ¶ 10:364, p. 10:143.) It "does not

establish the merits or legal sufficiency of either party's case. Thus, the judge at trial may

direct a verdict in favor of the moving party despite the earlier denial of summary

[adjudication]." (Ibid., italics omitted.)

       In fact, in her motion in limine, counsel for Laura specifically requested that Judge

Cline consider "all the opposition pleadings, declarations and exhibits and legal authority

filed by [Laura] in connection with the Motion for Summary Judgment as further support

of this Motion in Limine," thereby inviting Judge Cline to review Judge Von

Kalinowski's ruling denying Robert's motion for summary judgment. Also, as noted by

the court, Laura, by presenting Judge Cline with her motion in limine to introduce parol

evidence, was estopped from requesting that the issue be referred back to Judge Von

Kalinowski.2



2      Although the court stated in its ruling that it could and would reconsider the ruling
denying the motion for summary judgment, it only actually was presented with and ruled
on the motions in limine presented by both parties. We express no opinion on when or
                                             19
         Laura's reliance on In re Marriage of Herr (2009) 174 Cal.App.4th 1463 is also

unavailing. In In re Marriage of Herr, an untimely motion for reconsideration was filed

after a two-day trial. The trial court, on its own motion, granted reconsideration and

announced that all of the issues previously addressed during the trial would be revisited.

(Id. at p. 1465.) The Court of Appeal held this amounted to a new trial which the court

did not have authority to grant. (Ibid.)

         Kerns v. CSE Ins. Group (2003) 106 Cal.App.4th 368, 372 also does not assist our

analysis. There, the Court of Appeal held the trial court erred when it granted a motion

for summary judgment when a different judge had previously denied the identical

motion.

         Here, the court did not rule on a motion for reconsideration or attempt to retry

issues previously heard. It did not grant a request for summary judgment that had been

previously denied. Rather, it only ruled on motions in limine regarding the issue of parol

evidence that had been properly placed before it by both parties.

         D. Supplemental Briefing Re Fraud

         On February 22, 2013, we granted [Laura's] request to file a letter brief addressing

the California Supreme Court's recent decision in Riverisland, supra, 55 Cal.4th 1169.

At issue in Riverisland was the admissibility of parol evidence to prove fraud. (Id. at p.

1177.)



under what circumstances one judge may reconsider a ruling by another judge. (Goel,
supra, 35 Cal.4th at p. 1097, fn. 2.)

                                              20
       In Riverisland, the plaintiffs alleged they negotiated an agreement to restructure

their debt to a production credit association. They alleged that the representative of the

credit association told them that their loan would be extended for two years in exchange

for additional collateral consisting of two ranches. These assurances were repeated when

they signed the restructuring agreement, which they signed where tabbed for their

signatures without reading it. But the agreement actually provided for only three months

forbearance and identified eight parcels as additional collateral. (Riverisland, supra, 55

Cal.4th at p. 1173.) The plaintiffs sued for fraud, negligent misrepresentation, rescission

and reformation of the restructuring agreement. The trial court granted summary

judgment on the ground that the fraud exception to the parol evidence rule did not allow

admission of promises at odds with the terms of a written agreement. (Ibid.)

       The Court of Appeal reversed, and the California Supreme Court affirmed, that

decision. In doing so, the Supreme Court overruled Bank of America etc. Assn. v.

Pendergrass (1935) 4 Cal.2d 258. Pendergrass had limited the fraud exception to the

parol evidence rule by requiring that evidence offered to prove fraud "must tend to

establish some independent fact or representation, some fraud in the procurement of the

instrument or some breach of confidence concerning its use, and not a promise directly at

variance with the promise of the writing." (Id. at p. 263, italics added.) Characterizing

Pendergrass as "an aberration," the Supreme Court "reaffirm[ed] the venerable maxim

stated in Ferguson v. Koch [(1928)] 204 Cal. [342,] 347: '[I]t was never intended that the

parol evidence rule should be used as a shield to prevent the proof of fraud.'"

(Riverisland, supra, 55 Cal.4th at p. 1182.)

                                               21
       However, in this case, both below and on appeal, [Laura] is not seeking to set

aside the premarital agreement based upon fraud. Rather, she seeks to introduce parol

evidence to ascribe a meaning to paragraph 7.4.1 that is, as we have discussed,

inconsistent with the plain and unambiguous language of the clause. Thus, the

RiverIsland case has no bearing on our resolution of this appeal.

                                     DISPOSITION

       The judgment is affirmed.


                                                 NARES, Acting P. J.

WE CONCUR:


McDONALD, J.


AARON, J.




                                            22
