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ADVENT, INC. v. NATIONAL UNION FIRE INS. CO.

Case No.:  1-13-CV-238904

DATE:  January 21, 2014

TIME:  9:00 a.m.

DEPT.: 3

As an initial matter the Court has questions as to what is the operative pleading in this matter.  The First Amended Complaint (“FAC”) filed in federal court was never filed in state court after remand and is not a part of the court file for this matter.  The Court’s only awareness of it is its presentation as Exhibit 1 to the Declaration P. Betty Su (“Su Dec.”) offered by National Union.

Plaintiff-in-Intervention Topa Insurance Company’s Joinder to Advent’s motion is DENIED.  See Frazee v. Seely (2002) 95 Cal App 4th 627, 636 (“Each moving party shall support their motion for summary judgment with a separate statement.”)  Emphasis in original.

Advent’s request for judicial notice of five documents, exhibits A-E, various court filings from other actions is GRANTED pursuant to Evid. Code §452(d).  Notice is only taken as to the existence and filing dates of the documents, and not as to the truth of any of their contents.

National’s request for judicial notice of five documents, exhibits 1-5, is also GRANTED pursuant to Evid. Code §452(d).  Only exhibits 2 and 3, prior orders of this Court, are noticed as to the truth of their contents.  The others are noticed only as to their existence and filing dates where applicable.

Advent’s motion is treated as one for summary judgment only as that is all that is requested in the notice of motion.  Accordingly, the request for summary adjudication of “issue 1” at the end of Advent’s Separate Statement must be disregarded.  See Rule of Court 3.1350(b).  

Advent’s Motion is DENIED for failure to meet the initial burden.  Advent is bound by its pleading on summary judgment.  Nieto v. Blue Shield of Calif. Life & Health Ins. (2010) 181 Cal App 4th 60, 73 (“the pleadings determine the scope of relevant issues on a summary judgment motion.”)  In both the state Complaint and the federal FAC Advent seeks a declaration “that Advent is an additional insured under the Excess Policy and that Advent is entitled is entitled to coverage under the Excess Policy.”  Complaint at 21; “FAC” at 22, emphasis added.  In its Motion Advent states that it “seeks a determination that it is an additional insured under National Union’s excess policy.  At this time, it does not seek a determination as to whether National Union has a duty to defend or the duty to indemnify Advent in the underlying matter.  Those issues are reserved for resolution after Advent is declared an additional insured.”  P&As at 1:15-18.  The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact.  Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.  Where a plaintiff (or cross-complainant) seeks summary judgment, the burden is to produce admissible evidence on each element of a “cause of action” entitling him or her to judgment.  CCP §437c(p)(1).  LLP Mortgage v. Bizar (2005) 126 Cal App 4th 773, 776 (burden is on plaintiff to persuade court

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