Judge: Bruce G. Iwasaki, Case: 20STCV10768, Date: 2023-02-07 Tentative Ruling

Case Number: 20STCV10768    Hearing Date: February 7, 2023    Dept: 58

Judge Bruce G. Iwasaki

Hearing Date:             February 7, 2023

Case Names:               Rotax, Inc. v. Underwriters at Lloyd’s et al.

Case Nos.:                   20STCV10768           

Matter:                        Motion for Summary Judgment x2

Moving Party:             Defendant G.J. Sullivan Excess & Surplus Line Insurance Brokers, Inc.

Responding Party:       Plaintiff Rotax, Inc. and M.L. Enterprise LLC

This is an action involving breach of contract and negligence against numerous insurance companies and their agents for procuring the wrong policy.  The plaintiffs are M.L. Enterprise, LLC (M.L.), the warehouse owner, and Rotax, Inc. (Rotax), the tenant whose merchandise was allegedly destroyed during a fire.    

G.J. Sullivan, the surplus lines broker, previously moved for summary judgment against Rotax on the negligence cause of action.  On October 13, 2022, the Court denied the motion.

On November 22 and December 12, 2022, G.J. Sullivan (Defendant or G.J. Sullivan) filed two additional motions for summary judgment on the negligence claim against Rotax, Inc. and M.L.

In the motion for summary judgment against Rotax, Defendant G.J. Sullivan argues that the damages prong is not met because Plaintiff fails to show causation through the substantial factor test.  Rotax opposes the motion, arguing that it violates Code of Civil Procedure section 1008 regarding motions for reconsideration.

As to Plaintiff M.L., G.J. Sullivan argues that it did not breach any duty owed and that Plaintiff cannot show any damages.  M.L. opposes the motion, asserting that G.J. Sullivan is barred by collateral estoppel based on its original motion for summary judgment against Rotax.

G.J. Sullivan replied to both oppositions, arguing that the collateral estoppel argument is inapplicable, and that the motions do not violate the reconsideration statutes because it seeks summary judgment on a different issue, i.e., causation.  

Motion for summary judgment against Rotax

            Defendant concedes that its second motion for summary judgment against Rotax is procedurally defective and not in compliance with Code of Civil Procedure section 1008.  However, it contends that despite any such violation, the Court has inherent authority to consider the motion.

If G.J. Sullivan is moving for reconsideration under section 1008, the motion is procedurally defective.  The motion must be accompanied by a declaration from the moving party stating (1) what application was made previously, (2) when and to what judge the application was made, (3) what order or decisions were made, and (4) what new or different facts, circumstances, or law are claimed to be shown. (§ 1008, subd. (a).) No such declaration was submitted.  The motion is also untimely, as it was filed over one month after the order on summary adjudication.  (Code Civ. Proc., § 1008, subd. (a).) G.J. Sullivan is reminded that a violation of section 1008 may be sanctionable under section 128.7.  (§ 1008, subd. (d).)  Since Plaintiff has not requested sanctions, the Court will not impose any now.  The motion’s untimeliness and failure to comply with the procedural requirements would be sufficient and independent reason to deny the motion.   

However, it is true that the Court retains inherent authority to hear the motion irrespective of the procedural deficiencies.  (Code Civ. Proc., §§  1008, subd. (c).)  Moreover, under section 437c, subdivision (f)(2), a party may renew a motion for summary judgment if it establishes “newly discovered facts or circumstances or a change of law supporting the issues” to the satisfaction of the Court.

G.J. Sullivan advances two principal arguments in its renewed motion for summary judgment against Rotax.  First, in addressing the Court’s prior concerns of ambiguity, G.J. Sullivan provides the responses from Erik Davidyan to Plaintiff M.L.’s Form Interrogatories.  Second, it asserts that under the “Substantial Factor Test” of CACI 430, Defendant’s conduct must be “a factor that a reasonable person would consider to have contributed to the harm.”  Therefore, Defendant argues, because it did not deal directly with Rotax, it could only rely on instructions from the retail insurance broker, Davidyan.

Neither of these reasons compel reconsideration.  As to the discovery responses, these were dated August 13, 2021.  (Campo Decl., Exs. H-1 and H-2.)  There was no reason that Defendant could not have offered these at the earlier motion for summary judgment, which was filed in July 2022.  As to the “Substantial Factor Test,” this was also preexisting law at the time Defendant filed its first motion.  (Toste v. CalPortland Construction (2016) 245 Cal.App.4th 362, 366.)  G.J. Sullivan does not offer any reason as to why it did not make these arguments in its initial motion.  Therefore, the Court does not find that there are any new factual circumstances or law that justifies a reconsideration of the earlier order denying summary judgment.

Motion for summary judgment against Plaintiff M.L.

            G. J. Sullivan’s motion for summary judgment against M.L. is also procedurally defective.  A motion for summary judgment or adjudication must be noticed at least 75 days in advance of the hearing.  (Code Civ. Proc., § 437c, subd. (a)(2).)  An additional two court days is added if the notice is served electronically.  (Code Civ. Proc., § 1010.6, subd. (a)(4)(B).)

            “[T]he Legislature did not . . . authorize a trial court to shorten the minimum notice period for hearings on summary judgment motions.  Such discretionary language is notably absent from the statute.  Moreover, the statutory language regarding minimum notice is mandatory, not directive.”  (Urshan v. Musicians’ Credit Union (2004) 120 Cal.App.4th 758, 764, italics added; Cuff v. Grossmont Union High School District (2013) 221 Cal.App.4th 582, 595-596.)  “A trial court does not have authority to shorten the minimum notice period for summary judgment hearings absent the express consent of the parties.”  (Urshan, supra, 120 Cal.App.4th at p. 768; see also McMahon v. Superior Court (2003) 106 Cal.App.4th 112, 114-18.) 

The motion was electronically served on Plaintiff on November 22, 2022, with a hearing that was scheduled for February 7, 2023.[1] Counting forward from the service date, 75 days is Sunday, February 5, 2023. (See Code Civ. Proc. § 437c, subd. (a)(2); see also Barefield v. Washington Mutual Bank (2006) 136 Cal.App.4th 299, 303.) This rolls over to the Monday, February 6, 2023. (Code Civ. Proc, § 12a, subd. (a).)  Adding two court days for electronic service means that the earliest hearing date for the motion is February 8, 2023.  (Code Civ. Proc., § 1010.6, subd. (a)(4)(B).)   

Counting backwards results in the same problem.  75 days from February 7, 2023 is November 24, 2022.  However, that date is a holiday and so it rolls backwards into November 23.  Counting two court days means that Plaintiff must have been served on November 21, but it was not served until November 22.  In either scenario, the motion is untimely.

The Court has no authority to continue the hearing date to cure this defect. (See Robinson v. Woods (2008) 168 Cal.App.4th 1258, 1268 [holding that defendant’s 76-day notice on a mailed motion was invalid and that at the hearing, “the trial court had no authority to continue the hearing a mere four days.  At that point, the notice period had to begin anew . . . The four-day continuance was a violation of due process and an abuse of discretion”].)  Thus, the Court denies the motion for summary adjudication on this basis.