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Aerojet-General Corp. v. Industrial Underwriters Insurance Co.2/28/2002
Kalivas v. Barry Controls Corp. (1996) 49 Cal.App.4th 1152, which held a trial court's denial of reconsideration was improper. In Kalivas, the defendant filed a motion for summary judgment. The trial judge, pursuant to his own "courtroom local rule," issued his standard order directing the parties to meet and confer and prepare a joint statement of undisputed and disputed facts (rather than the separate statements mandated by ยง 437c). (Id. at pp. 1155, 1158.) Although the order stated the pending motion was ordered off calendar, the motion was not taken off calendar. (Id. at p. 1155.) Defense counsel appeared in court on the scheduled date. Plaintiff's counsel did not appear or file any opposition. The trial court granted the summary judgment motion and denied the plaintiff's subsequent motion for reconsideration. The appellate court reversed, concluding the courtroom local rule conflicted with statutory law, was procedurally confusing, and led the plaintiff's counsel to believe the court had taken the summary judgment motion off calendar. (Id. at pp. 1154, 1160-1161.) Thus, Kalivas bears no similarity whatsoever to the case before us. Aerojet claims this case is similar to Kalivas because the insurers' notice of motion misled Aerojet by failing to raise the environmental injury issue. We have explained Aerojet is incorrect.
Aerojet cites pleadings from a different court case (Dover Diversified Industries v. Aetna Insurance Company) handled by the same law firm which represents Aerojet, in which some of these same insurers assertedly filed a notice of motion for summary judgment which specified lack of covered property damage as a distinct ground separate from the pollution exclusion. However, this document was not before the trial court when it ruled on the summary judgment motion in the instant case. Aerojet submitted it to the trial court in the motion for reconsideration. As we have explained, the trial court properly denied the reconsideration motion. In reviewing a summary adjudication ruling, we consider only those facts which were before the trial court. (American Continental Ins. Co. v. C & Z Timber Co. (1987) 195 Cal.App.3d 1271, 1281.) Moreover, each motion is judged on its own. The fact that someone worded a motion differently in a different case has no bearing on the sufficiency of this motion in this case. We have seen the motion in this case adequately raised the point that Aerojet's alleged sudden and accidental events did not cause the environmental injury , which was instead caused by routine activities subject to the pollution exclusion.
Aerojet cites this court's opinion in Juge v. County of Sacramento, supra, 12 Cal.App.4th 59, 69, that " f the parties' separate statements of material facts and evidence in support thereof include an undisputed material fact which is dispositive of the action, but the moving party has overlooked the legal significance of that fact and has neglected to cite the applicable ground of law as a basis for summary judgment, the trial court need not address the issue." Juge said the trial court could address such matter, but due process required that the opposing party be given the opportunity to respond. (Id. at p. 70.) However, unlike the case before us, the dispositive fact in Juge was not encompassed in the grounds asserted for summary judgment.
Thus, in Juge, supra, 12 Cal.App.4th 59, an injured bicyclist sued the County for negligence and premises liability, alleging the County failed to use proper design criteria and uniform specifications in designing and constructing a bike trail. (Id. at p. 63.) The County moved for summary judgment on two grounds: its design of the bikeway was protected by design immunity, and the uniform stan
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