Judge: Melissa R. Mccormick, Case: "Nguyen v. Union Pacific Corporation, et al.", Date: 2022-08-04 Tentative Ruling
Defendant and Cross-complainant Union Pacific Railroad Company’s Motion for Summary Adjudication
Defendant and cross-complainant Union Pacific Railroad Company moves for summary adjudication on the fifth cause of action (breach of express contractual duty to defend) in its cross-complaint against cross-defendant P&B Intermodal Services, LLC. Union Pacific argues undisputed facts show P&B has a duty to defend Union Pacific in this lawsuit based on an indemnity provision in a contract between Union Pacific and P&B. For the following reasons, Union Pacific’s motion is denied.
This is the second time Union Pacific has filed this motion. The court denied the first motion. See 2/10/22 Order. Union Pacific argues neither Civil Procedure Code section 437c(f)(2) nor Civil Procedure Code section 1008 bars this second motion. Both do.
Section 437c(f)(2) states: “A party shall not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court unless that party establishes, to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion.”
Union Pacific previously moved for summary judgment or, in the alternative, summary adjudication on the same issue it asserts in this motion. The court denied both summary judgment and summary adjudication. See 2/10/22 Order. That Union Pacific styles its current motion as one for summary adjudication, not summary judgment, does not render section 437c(f)(2) inapplicable. The fact remains that Union Pacific previously sought summary adjudication of the same issue on which it seeks summary adjudication in this motion, and the court denied the prior motion. Union Pacific’s failure to cite the applicable law in its prior motion does not constitute a “change of law” supporting a second summary adjudication motion on the same issue.
Moreover, even if section 437c(f)(2) does not apply, section 1008 bars Union Pacific’s motion. Section 1008(b) states that a party who originally made an application for an order which the court refused in whole or in part may make a subsequent application for the same order “upon new or different facts, circumstances, or law.” Cal. Civ. Proc. Code § 1008(b). The party making the application shall show “by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” Id.
Union Pacific has not met this burden. Union Pacific has not identified any “new or different facts, circumstances, or law” which it could not, with reasonable diligence, have discovered and produced at the time of the prior motion. Nothing prevented Union Pacific from relying on Nebraska law in its prior motion. Union Pacific chose to rely on California law. For the reasons set forth in the court’s February 10, 2022 order, the court disagreed with Union Pacific that California law applies to the contractual provision upon which Union Pacific’s motion rested. Union Pacific, this time relying on Nebraska law, seeks to have its motion heard again. These circumstances do not constitute “new or different” law warranting a second motion, nor has Union Pacific demonstrated any new or different facts that Union Pacific could not, with reasonable diligence, have discovered and produced at the time of the prior motion.
The parties’ evidentiary objections were not material to the disposition of the motion. Cal. Civ. Proc. Code § 437c(q).
P&B’s request for judicial notice is denied. It is not necessary to seek judicial notice of documents in the court file for this case.
Cross-defendant P&B Intermodal Services, LLC to give notice.