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County of San Diego v. Ace Property & Casualty Insurance Co.2/19/2003
triable issue of material fact regarding any opportunity of ACE to explore settlement options. At the trial court the County submitted numerous letters it exchanged with ACE, but they are not included in the appellate record. At oral argument, ACE submitted three of the letters: The County's May 7, 1997, and July 16, 1997, letters demanding indemnity for expenses incurred in complying with CAO 97-17, and ACE's July 17, 1997, letter reserving rights to deny coverage on numerous grounds, including the lack of a third party lawsuit. These letters were exchanged after the County waived its right to challenge the imposition of CAO 97-17, and thus as a matter of law ACE could not have breached any arguable settlement duty regarding that claim. Moreover, the letters do not even mention the Sossaman or Atkinson claims.
"The appellant must affirmatively show error by an adequate record." (9 Witkin, Cal. Procedure (4th ed. 1997) ยง 518, p. 562.) Further, "it is not proper practice on appeal to refer in briefs to circumstances not established by the record. [Citations.]" (Davis v. Thayer (1980) 113 Cal.App.3d 892, 912; Lady v. Barrett (1941) 43 Cal.App.2d 685, 678; Randall v. Allen (1919) 180 Cal. 298, 302; Arruda v. Arruda (1963) 218 Cal.App.2d 410, 414.)
DISPOSITION
The judgment is affirmed. ACE is awarded its costs on appeal.
CERTIFIED FOR PUBLICATION
WE CONCUR:
McDONALD, Acting P. J.
O'ROURKE, J.
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