Judge Kerry Bensinger, Case Number: 20STCV12995, Date: 2023-08-30 Tentative Ruling

On April 1, 2020, Mason Breaux (“Breaux”) initiated this action against Carmanita Corporation and Estate of Richard Rhee, for negligence and premises liability. Plaintiff alleges that, on May 1, 2018, a piece of concrete fell from the roof/ceiling in the basement of Defendants’ property at 4317 Beverly Boulevard, struck him on his head and shoulder, and knocked him unconscious. Breaux was working in the scope of his employment with Astromic, LLC (“Astromic”) at the time of the incident.

On April 23, 2020, Technology Insurance Company (“Technology Insurance”), filed a Complaint in subrogation against Defendants 4301 Beverly, LLC (“4301 Beverly”), Black Equities Group, LTD, Carmanita Corporation, and Estate of Richard Rhee, for recovery of workers compensation benefits paid to Astromic for the injuries Breaux sustained on May 1, 2018. This case was consolidated with the Breaux action on August 10, 2021 as the non-lead case.

On October 6, 2022, 4301 Beverly filed a motion for summary judgment on Technology Insurance’s Complaint. Technology Insurance did not file an opposition.

The motion was heard on August 30, 2023. The Court issued a tentative ruling granting the motion given no opposition had been filed. At the hearing, counsel for Technology Insurance requested leave to file an opposition. Pursuant to that request, the Court continued the hearing for this motion to October 6, 2023 and set a briefing schedule for Technology Insurance’s request to file an opposition.[1]

On September 11, 2023, Technology Insurance filed a Request to Continue the Hearing for 4301 Beverly’s Summary Judgment Motion and a Request for Leave to File Opposition.

4301 Beverly and Gore Bros., Inc.[2], filed a Joint Opposition to Technology Insurance’s Requests.

The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.¿ Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted.¿(Code Civ. Proc., § 473, subd. (b).)¿“ ‘The general underlying purpose of section 473(b) is to promote the determination of actions on their merits.’ ” (Austin v. Los Angeles Unified School Dist. (2016) 244 Cal.App.4th 918, 928.)

When considering whether such relief should be granted, courts must consider (1) whether the moving party’s mistake is excusable, (2) whether the moving party acted diligently, and (3) whether the opposing party will suffer any prejudice. (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 258 (Zamora).) “Where the mistake is excusable and the party seeking relief has been diligent, courts have often granted relief pursuant to the discretionary relief provision of section 473 if no prejudice to the opposing party will ensue.” (Ibid.) “ ‘It is well settled that appellate courts have always been and are favorably disposed toward such action upon the part of the trial courts as will permit, rather than prevent, the adjudication of legal controversies upon their merits.’ [Citation.] Thus, ‘the provisions of section 473 of the Code of Civil Procedure are to be liberally construed and sound policy favors the determination of actions on their merits.’ ” (Id. at pp. 255-256.)

If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication or both that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due. (Code Civ. Proc., § 437c, subd. (h); see Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 395.)

“Failure to request a continuance to conduct further discovery before the opposition is due waives the right to further discovery. [Lewinter v. Genmar Indus., Inc. (1994) 26 CA4th 1214, 1224, 32 CR2d 305, 311; Roman v. BRE Properties, Inc. (2015) 237 CA4th 1040, 1056, 188 CR3d 537, 551—opposing party must request continuance and show, either in opposition papers or in a separate application filed no later than the opposition papers, that discovery needed to oppose motion (pendency of motion to compel further discovery insufficient to trigger continuance of summary judgment motion)].” (Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group 2023), ¶ 10:207.1.)

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“[T]he initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) A moving defendant need not conclusively negate an element of plaintiff’s cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) It is insufficient for the defendant to merely point out the absence of evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.” (Ibid.)¿ The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken. (Aguilar, supra, 25 Cal.4th at p. 855.)

“Once the defendant … has met that burden, the burden shifts to the plaintiff … to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

Technology Insurance seeks leave to file opposition to 4301 Beverly’s summary judgment motion based on Code of Civil Procedure sections 473, subdivision (b), and 437c, subdivision (h). Technology Insurance is not entitled to relief.

First, Technology Insurance argues relief under 473, subdivision (b) is proper because counsel inadvertently believed the hearing for 4301 Beverly’s summary judgment motion had been continued to October 11, 2024. (Declaration of Stanley R. Escalante, ¶ 16.) However, even if this constitutes inadvertence or excusable neglect within the meaning of section 473, Technology Insurance fails to include a copy of the proposed opposition to be filed. Application for [473] relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted.¿ (Code Civ. Proc., § 473, subd. (b).)(emphasis added.) As such, Technology Insurance’s request for leave cannot be granted on this basis.

Second, Technology Insurance argues leave to file an opposition and continue the hearing on the motion is authorized pursuant to Code of Civil Procedure section 437c, subdivision (h). “A party seeking continuance or denial of a motion under section 437c, subdivision (h) must show that the facts to be obtained are essential to opposing the motion, that there is reason to believe such facts may exist, and that additional time is needed to obtain these facts.” (501 E. 51st St., Long-Beach-10 LLC v. Kookmin Best Ins. Co. (2020) 47 Cal.App.5th 924, 939; Code Civ. Proc., § 437c, subd. (h).) Here, Technology Insurance fails to identify facts, which have yet to be obtained, that are essential to opposing 4301 Beverly’s summary judgment motion. Nor can it. Technology Insurance’s basis for a continuance is not the need to conduct additional discovery. And even if it were, Technology Insurance has not timely made the request for a continuance. The request must be either in opposition papers or in a separate application filed no later than the opposition papers. (Roman v. BRE Properties, Inc. (2015) 237 Cal.App.4th 1040, 1056.) As reflected in the procedural history, Technology Insurance did not file an opposition. Instead, Technology Insurance made its untimely request to file an opposition at the hearing. As such, relief under section 437c, subdivision (h) is unavailable.

Undeterred, Technology Insurance argues Code of Civil Procedure section 128 confers upon this Court the authority to permit leave to file a late opposition. Not so. As 4301 Beverly points out, section 128 does not provide for relief based on mistake, inadvertence, or excusable neglect.

On May 1, 2018, Mason Breaux sustained injuries while working in a building located at 4317 Beverly Boulevard, Los Angeles, California. (Undisputed Material Fact (“UMF”) 1.) Plaintiff claims that Breaux’s May 1, 2018 accident resulted in part from 4301 Beverly’s negligence in its “ownership, care, maintenance, caretaking, repairing, contracting, and subcontracting” the subject property. (UMF 2.) Plaintiff also claims that Breaux was in the course and scope of his employment for its insured, Astromic, LLC (“Astromic”) when the May 1, 2018 accident occurred and that it accordingly paid workers' compensation benefits to Breaux, which it seeks to recover from 4301 Beverly in its instant subrogation action. (UMF 3.) On July 15, 2016, Defendant, as tenant, entered into a lease agreement (the “Master Lease”) with Gore Bros., Inc., the owner, for the subject property located at 4305 and 4311-4325 and 4327 Beverly Boulevard, Los Angeles, California. (UMF 4.) The portion of the Premises located at 4315 Beverly Boulevard (which is also known as 4317 Beverly Boulevard) (the "Subject Property"), includes a basement area (the “Basement”) where Breaux alleges he was injured by a piece of falling concrete on or about May 1, 2018. (UMF 5.) The Master Lease provided at Paragraph 9 in pertinent part:

“9. Maintenance 9.1 General Maintenance. Throughout the Term, Tenant shall at Tenant's sole cost and expense, maintain the Premises and the Improvements (including the Building) including every part thereof in first-class, clean and sanitary condition and repair, including but not limited to Tenant's signs, the foundation, structural components of the Premises and the Improvements (including the Building), building and utility systems and equipment, plumbing, electrical components, utility connections, sewers, drains, plumbing, the roof structure and membrane, all doors and windows and replace the foregoing as needed, ordinary wear and tear excepted, and in accordance with all applicable federal, state and local laws….”

(UMF 6.) On December 22, 2017, Defendant, as Sublandlord, entered into a Sublease agreement (“Sublease”) with Astromic, as subtenant, for a portion of the Subject Property, specifically, the building containing approximately 46,000 leasable square feet on the ground floor and in the basement and related parking commonly known at 4315 Beverly Blvd. and 317 N. Ardmore Avenue in Los Angeles, California. (UMF 7.) Paragraph 5.3 of the lease specifically provided in relevant part:

“5.3 Subtenant's Indemnity. Subtenant agrees to indemnify, defend and hold Sublandlord, Master Landlord and Sublandlord and all of Sublandlord's officers, directors, employees, managers, agents and contractors (collectively, the "Sublandlord Parties") harmless from and against any and all obligation, loss, claim, action liability, penalty damage, cost or expense, including without limitation, reasonable attorneys' fees and disbursements, that is imposed or asserted by any third party (collectively "Claims") to the extent arising from: (i) any occurrence within the Subleased Premises after the Delivery Date….(ii) the negligence or willful misconduct of Subtenant or Subtenant's employees, agents, contractors, subtenants, or concessionaires, (iii) the death of or injury to any person or damage to any property on or about the Subleased Premises caused directly or indirectly by Subtenant or Subtenant's employees, agents, contractors, subtenants, or concessionaires, (iv) Subtenant's breach or default under this Sublease or, to the extent incorporated herein, the Master Lease….(vi) any acts, omissions or negligence of Subtenant or of any person claiming by, through or under Subtenant, or of the contractors, agents, servants, employees, invitees, guests or licensees of Subtenant or any such person, in, on or about the Subleased Premises, (vii) any matter relating to Subtenant's performance of the common area maintenance or repair obligations as contained in this Sublease….Notwithstanding the foregoing, Subtenant shall accept any tender of defense of any action or proceeding in which Sublandlord or Master Landlord is named or made a party with respect to a matter which Subtenant is required to indemnify Sublandlord hereunder, and shall, notwithstanding any allegations of gross negligence or willful misconduct on the part of Sublandlord or Master Landlord, defend Sublandlord or Master Landlord as provided herein…..”

“…Subtenant shall maintain, repair, and replace in good condition and order all structural elements of the building within the Subleased Premises, including but not limited to all equipment or facilities serving the Subleased Premises, such as plumbing, HVAC equipment, electrical lighting facilities, boilers, pressure vessels, interior and exterior walls, interior and exterior surfaces of walls, the roof, supports, ceilings, floors, windows, doors, plate glass, and skylights….”

(UMF 9.) Section 6.3 Subtenant's Other Maintenance Obligations, also provided in relevant part:

“…at Subtenant's sole expense, Subtenant shall repair and maintain, make capital repairs and improvements to, the Subleased Premises and all keep all elements of the Subleased Premises in good order, repair and working condition, including without limitation, the following: (a) the non-structural portions of the Subleased Premises (including all improvements, alterations, fixtures, and furnishings), (b) the Base Building Systems (as defined below), (c) the roof membrane and roof structure, (d) all structural and non-structural exterior surfaces of the building contained within the Subleased Premises, including the painting, re-painting and covering of graffiti, (e) all structural and non-structural exterior surfaces of the building contained within the Subleased Premises, and (g) all other areas and any ancillary improvements located on or about the Subleased Premises….Good working repair shall mean that such items function normally within specifications without requiring constant repairs.”

“Except as otherwise expressly provided herein, this Sublease is subject and subordinate in all respects to the terms of, and the rights of the Landlord under, the Master Lease. Except as otherwise expressly provided in this Sublease, (a) Subtenant covenants and warrants that it fully understands and agrees to be subject to and bound by all of the covenants, agreements, terms, provisions and conditions of the Master Lease as it applies to the Subleased Premises and Subtenant hereby expressly agrees to comply with all the obligations required to be kept or performed by Sublandlord with respect to the Subleased Premises, in its capacity as tenant, under the provisions of the Master Lease, and (b) the covenants, agreements, terms, provisions and conditions of the Master Lease insofar as they relate to the Subleased Premises and insofar as they are not inconsistent with the terms of this Sublease are made a part of and incorporated into this Sublease as if recited herein in full, and the rights and obligations of the Landlord and the Tenant under the Master Lease shall be deemed the rights and obligations of Sublandlord and Subtenant respectively hereunder (with the words “Landlord” and “Tenant” as used in the Master Lease to be deemed to refer to Sublandlord and Subtenant respectively hereunder) and shall be binding upon and inure to the benefit of Sublandlord and Subtenant respectively.”

(UMF 11.) Pursuant to the Sublease, Astromic, Technology Insurance’s insured, has been providing 4301 Beverly’s defense of Breaux's negligence and premises liability claims in this consolidated action. (UMF 12.)

4301 Beverly argues Technology Insurance’s subrogation claim is barred because Technology Insurance, as Astromic’s insurer, cannot bring a subrogation action against its own insured. The Court agrees. “Subrogation places the insurer in the shoes of its insured to the extent of its payment. When standing in the insured's shoes, the insurer has no greater rights than the insured would have, and for that reason is subject to the same defenses assertable against the insured. While the insurer by subrogation steps into the shoes of the insured, that substitute position is qualified by a number of equitable principles. For example, an insurer cannot bring a subrogation action against its own insured.” (State Farm Gen. Ins. Co. v. Wells Fargo Bank, N.A. (2006) 143 Cal. App. 4th 1098, 1106 [cleaned up].)

Here, Astromic entered into a contractual agreement with 4301 Beverly wherein Astromic agreed to indemnify 4301 Beverly for any claim “arising from… any occurrence within the Subleased Premises after the Delivery Date.” (UMF 8.) In other words, Astromic has assumed the defense of 4301 Beverly for any claims arising from the premises, including Breaux’s personal injury claims. Technology Insurance, then, cannot step into Astromic’s shoes to sue 4301 Beverly. Doing so would place Technology Insurance in the position of suing Astromic itself and in the process run afoul of the equitable principle that an insurer cannot bring a subrogation action against its own insured.

Based on the foregoing, 4301 Beverly shows Technology Insurance’s claims are barred as a matter of law. Technology Insurance did not file an opposition. Consequently, Technology Insurance has not met its burden to show there is a triable issue of material fact. 4301 Beverly is entitled to summary judgment.

Plaintiff Technology Insurance’s Request for Leave to File Opposition and Request to Continue the Hearing for 4301 Beverly’s Motion for Summary Judgment are denied.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

[1] The Court also directed Technology Insurance to file a request to reopen discovery. However, the parties thereafter stipulated to continue the trial date and all related dates, including discovery. (See 9/19/23 Stipulation for Continuance of Trial and All Related Dates.) As such, the request to reopen discovery is moot. The Court further notes that the Stipulation does not provide for a continuance of this motion for summary judgment, nor does it state whether Technology Insurance would have an opportunity to file an opposition.

[2] Gore Bros., Inc. is the owner of the property at 4305 and 4311-4325 and 4327 Beverly Boulevard, Los Angeles, California.