Aliberti

I concur in the entirety of my colleagues’ opinion and the judgment. I.believe though it bears emphasis that defendants have forfeited, by the failure to brief the issue, the right to argue the issue of whether plaintiff waived his jury trial arguments by not raising them before the trial *150 judge. (Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4 [ 188 Cal.Rptr. 115 , 655 P.2d 317 ]; Johnston v. Board of Supervisors (1947) 31 Cal.2d 66, 70 [ 187 P.2d 686 ], disapproved on another point in Bailey v. County of Los Angeles (1956) 46 Cal.2d 132, 139 [ 293 P.2d 449 ].)

The petition of defendants and appellants for review by the Supreme Court was denied November 10, 1999. Mosk, J., was of the opinion that the petition should be granted.

Plaintiff Orlando Aliberti appeals from the judgment entered in favor of defendants Allstate Insurance Company and Alvin Williams. Allstate has cross-appealed from a pretrial order denying its motion for leave to file a cross-complaint. For the reasons set forth below, we reverse the judgment. As a result, we dismiss as premature Allstate’s cross-appeal.

Facts and Procedural History

Plaintiff and appellant Orlando Aliberti (Aliberti) owned a six-unit apartment building on Rambla Vista Road in Malibu (the building). His personal home was located nearby on the same piece of land. As of April 1990, both the building and Aliberti’s home were insured for fire loss under separate policies issued by defendant and respondent Allstate Insurance Company (Allstate). Aliberti obtained the policies through defendant and respondent Alvin Williams of Allstate, his insurance agent since 1986. 1 When first issued in 1990, the policy on the building (the apartment policy) had a structural damage limit of $271,000. The apartment policy was renewed yearly and by November 1993 had a structural damage limit of $317,000.

Both the building and Aliberti’s home were destroyed on November 2,…