This is a coverage dispute in which the insured (the Southern California Gas Company [SoCalGas]) contends the carrier (Certain Underwriters at Lloyd's of London designated as Lowsley-Williams and Companies [Lowsley-Williams]) breached its duties to defend and indemnify SoCalGas in several environmental contamination actions. SoCalGas tendered the defense of the underlying actions to Lowsley-Williams, but Lowsley-Williams refused to defend or indemnify SoCalGas and this lawsuit followed. Lowsley-Williams moved for summary adjudication of issues, contending there was no possibility of coverage under the policies (and thus no duty to defend) because the coverage afforded under its policies was effective for "finite policy periods" during which SoCalGas had no insurable interest in the properties that are the subject of the underlying action and, therefore, no objectively reasonable expectation of coverage. Lowsley-Williams presented some evidence (discovery responses) addressing the insurable interest issue but it did not submit copies of the insurance policies or any evidence of the allegedly "finite" policy periods or of the terms and conditions of those policies. SoCalGas opposed the motion, contending
As evidentiary support for its motion, Lowsley-Williams relied on SoCalGas's first amended complaint which, according to Lowsley-Williams, "contends" that Lowsley-Williams issued "various excess liability policies" for specified periods of time. In its opposition, SoCalGas admits it contends that Lowsley-Williams is liable under the policies but points out that Lowsley-Williams had "not introduced the relevant insurance policies into evidence, and there is thus no admissible evidence regarding the language or terms of those policies." The issue, as framed by Lowsley-Williams, was whether SoCalGas had an insurable interest in the properties that are the subject of the underlying actions at the time the policies were in effect. The threshold question, however, is whether that issue could or should be determined in a vacuum. According to Lowsley-Williams, "the particular language of the [listed] Policies is irrelevant for purposes of applying the statutory insurable interest requirement, because that requirement is read into the policies as a matter of law." According to SoCalGas, the language of the policies must be examined to determine the dates the policies were "in effect" (that is, the dates relevant to the "insurable interest" issue) and whether the terms and conditions of the policies support a claim of coverage for the underlying actions.
Lowsley-Williams contends the trial court should have granted its motion on the ground that SoCalGas's allegation of "the policy periods" (that is, the
Under the plain language of the statute, the burden does not shift to the plaintiff unless the moving defendant first meets its burden of "showing" that the plaintiff cannot establish at least one element of its cause of action. (§ 437c, subd. (o)(2).) Under our holding in Leslie (and under the rules announced in all of the cases decided since the 1993 amendment to section 437c [Stats. 1993, ch. 276]), this initial burden can be met by the presentation of "factually vague discovery responses or otherwise" — but we know of no case suggesting that section 437c permits the moving defendant to meet its initial burden without any showing at all. (Leslie G. v. Perry & Associates, supra, 43 Cal. App.4th at p. 482 ["factually vague discovery responses" sufficient to shift burden]; see also Villa v. McFerren (1995) 35 Cal.App.4th 733,
We find nothing in section 437c or any case to suggest that a defendant moving for summary judgment or summary adjudication can shift the burden of proof to the plaintiff by the sort of challenge presented by Lowsley-Williams's motion. More specifically, we find nothing in section 437c to suggest a legislative intent to require our state courts to decide coverage issues without reference to the policy from which springs the claim of coverage. (Cf. United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 333 [282 Cal.Rptr. 368] [to justify adjudication of an issue, the moving party must show that it is supported by undisputed facts, which in turn must be established by "admissible evidence"].)
Which brings us to the heart of the problem. Lowsley-Williams's argument seems to assume that the 1992 and 1993 amendments to section 437c adopted rule 56 of the Federal Rules of Civil Procedure (28 U.S.C.) as well as every nuance of the rules announced in Celotex Corp. v. Catrett (1986) 477 U.S. 317 [106 S.Ct. 2548, 91 L.Ed.2d 265].
A court that can grant summary judgment on its own motion can by definition grant summary judgment or summary adjudication without any initial evidentiary showing and simply because the responding party has failed to meet a challenge by coming forward with proof that its claim has merit. (10A Wright et al., Federal Practice and Procedure (1997 pocket supp.) § 2720, p. 9 [Celotex suggests the power of the court to enter summary judgment sua sponte supports the conclusion that the moving party need not produce evidence but simply can argue that there is an absence of evidence by which the opponent can prove its case].) Thus, in federal court, Lowsley-Williams's motion might have been sufficient to challenge SoCalGas to satisfy the court that SoCalGas could, given a chance, prove its case, and to shift to SoCalGas the burden to submit the insurance policies and any other evidence necessary to defeat Lowsley-Williams's motion.
As we write, there is pending before our Legislature yet another attempt to amend section 437c, Assembly Bill No. 843 (1997-1998 Reg. Sess.). If passed, this bill would still require that the motion be made by a party rather than the court, but it would once again change the burden of proof. Assembly Bill No. 843 would impose on the moving party (plaintiff or defendant) "the initial responsibility of informing the court of the basis for its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of a material fact but need not negate the elements of any cause of action or defense on which the nonmoving party bears the burden of proof." (§ 437c, subd. (b), as it would be amended by Assem. Bill No. 843, italics added.) Where the statute now provides that the motion "shall" be supported by declarations, discovery responses and matters subject to judicial notice (§ 437c, subd. (b)), the bill would amend it to provide that the motion "may" be supported by these items. (§ 437c, subd. (c), as it would be amended by Assem. Bill No. 843.) Where the statute now specifies the burden of proof (§ 437c, subd. (o)), it would be amended by the bill to provide that a moving defendant "has met [its] burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, have not been [instead of `cannot be'] established, or that there is a complete defense to that cause of action. Once the defendant ... has met that burden, the burden shifts to the plaintiff ... to show that a genuine [instead of `triable'] issue
Without these or other further amendments, we will not read the 1993 amendment to section 437c as a wholesale adoption of rule 56 of the Federal Rules of Civil Procedure (28 U.S.C.), including its judicial gloss imposing the burden of proof on summary judgment on the party who bears the burden at trial, without regard to which party moves for summary judgment. (Celotex Corp. v. Catrett, supra, 477 U.S. at p. 322 [106 S.Ct. at p. 2552].) In our state courts, the burden of proof on summary judgment or summary adjudication is not the same as it is at trial (compare Evid. Code §§ 500, 550 with Code Civ. Proc. § 437c, subd. (o); and see University of Southern California v. Superior Court (1990) 222 Cal.App.3d 1028, 1036 [272 Cal.Rptr. 264]) and we have not found any case suggesting that the 1993 amendment to section 437c changes this rule. Division Five of our court did not go that far. (Union Bank v. Superior Court, supra, 31 Cal. App.4th at pp. 581-592 [deciding only the propriety of a moving defendant's reliance on the plaintiff's discovery responses revealing an absence of evidence, and expressly declining to decide whether the 1993 amendment was intended to adopt the Celotex test].) The Sixth District did not go that far. (Hagen v. Hickenbottom (1995) 41 Cal.App.4th 168, 186 [48 Cal.Rptr.2d 197] [refusing to interpret the 1992 amendment to permit a moving defendant to shift the burden "simply by suggesting the possibility that the plaintiff cannot prove its case"]; Addy v. Bliss & Glennon (1996) 44 Cal.App.4th 205, 213-214 [51 Cal.Rptr.2d 642] [holding that the 1993 amendment did not adopt Celotex and reaffirming its decision in Hagen].)
We do not know why Lowsley-Williams is playing games. We have searched (electronically and the old-fashioned way) for a case deciding a coverage issue without reference to the policy or at least some evidence of its terms and conditions, but have found not a one and, to the best of our knowledge, there is no such case. (Compare A.C. Label Co. v. Transamerica Ins. Co. (1996) 48 Cal.App.4th 1188, 1193 [56 Cal.Rptr.2d 207]; Cooper Companies v. Transcontinental Ins. Co. (1995) 31 Cal.App.4th 1094, 1098 [37 Cal.Rptr.2d 508]; Montrose Chemical Corp. v. Admiral Ins. Co. (1995) 10 Cal.4th 645, 668-669 [42 Cal.Rptr.2d 324, 913 P.2d 878]; Montrose Chemical Corp. v. Superior Court (1993) 6 Cal.4th 287, 295 [24 Cal.Rptr.2d 467, 861 P.2d 1153]; Horace Mann Ins. Co. v. Barbara B. (1993) 4 Cal.4th 1076, 1079-1080 [17 Cal.Rptr.2d 210, 846 P.2d 792]; Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1262 [10 Cal.Rptr.2d 538, 833 P.2d 545]; Prudential-LMI Com. Insurance v. Superior Court (1990) 51 Cal.3d 674, 679-680 [274 Cal.Rptr. 387, 798 P.2d 1230]; AIU Ins. Co. v. Superior Court (1990) 51 Cal.3d 807, 814-815 [274 Cal.Rptr. 820, 799 P.2d 1253]; Gray v. Zurich Insurance Co. (1966) 65 Cal.2d 263, 272-273 [54 Cal.Rptr. 104, 419 P.2d 168]; United Pacific Ins. Co. v. McGuire Co. (1991) 229 Cal.App.3d 1560, 1563 [281 Cal.Rptr. 375]; Span, Inc. v. Associated Internat. Ins. Co. (1991) 227 Cal.App.3d 463, 476-480 [277 Cal.Rptr. 828]; State Farm Fire & Casualty Co. v. Eddy (1990) 218 Cal.App.3d 958, 965-966 [267 Cal.Rptr. 379]; California Ins. Guarantee Assn. v. Wood (1990) 217 Cal.App.3d 944, 946-947, fn. 1 [266 Cal.Rptr. 250]; Suarez v. Life Ins. Co. of North America (1988) 206 Cal.App.3d 1396, 1403 [254 Cal.Rptr. 377];
The petition is denied. SoCalGas is entitled to its costs of this proceeding.
Spencer, P.J., and Masterson, J., concurred.