BRIAN WHITAKER VS BOP FIGAT7TH LLC, A DELAWARE LIMITED LIABILITY COMPANY, ET AL.

Tentative Rulings

Case Number: 19STLC04037    Hearing Date: January 05, 2021    Dept: 25

HEARING DATE: Tue., January 5, 2021 JUDGE /DEPT: Blancarte/25

CASE NAME: Whitaker v. BOP FIGAT7TH, LLC, et al. COMPL. FILED: 11-20-19

CASE NUMBER: 19STLC04037 DISC. C/O: 04-24-21

NOTICE: OK DISC. MOT. C/O: 05-09-21

PROCEEDINGS: MOTION FOR SUMMARY JUDGMENT

MOVING PARTY: Plaintiff Brian Whitaker

RESP. PARTY: Defendants BOP FIGAT7TH, LLC and California Pizza Kitchen, Inc.

MOTION FOR SUMMARY JUDGMENT

(CCP § 437c)

TENTATIVE RULING:

Plaintiff Brian Whitaker’s Motion for Summary Judgment is CONTINUED TO FEB 11, 2021 at 11:00 A.M. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Defendants must file supplemental papers as requested herein.

SERVICE:

[X] Proof of Service Timely Filed (CRC 3.1300) OK

[X] Correct Address (CCP 1013, 1013a) OK

[X] 75/80 Day Lapse (CCP 12c and 1005 (b)) OK

OPPOSITION: Filed on October 1, 2020 [ ] Late [ ] None

REPLY: Filed on October 8, 2020 [ ] Late [ ] None

ANALYSIS:

1. Background

On April 24, 2019, Plaintiff Brian Whitaker (“Plaintiff”) filed an action for violation of the Unruh Civil Rights Act against Defendants BOP FIGAT7TH, LLC (“BOP”) and California Pizza Kitchen, Inc. (“CPK”). Defendants filed a joint answer on May 21, 2019.

Plaintiff filed the instant Motion for Summary Judgment (the “Motion”) on July 8, 2020. Defendants filed a Notice of Bankruptcy Stay (the “Notice of Stay”) on August 4, 2020 as to all parties. Plaintiff filed an objection to the Notice of Stay on September 8, and Defendants filed a reply to the objection on September 20, 2020.

On October 1, 2020, Defendant BOP filed an opposition to the Motion and on October 18, 2020, Plaintiff filed a reply. Defendant CPK filed its opposition on December 22, 2020, to which no reply has been filed.

1. Legal Standard

A party seeking summary judgment has the burden of producing evidentiary facts sufficient to entitle him/her to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Vesely v. Sager (1971) 5 Cal.3d 153.) The moving party must make an affirmative showing that he/she is entitled to judgment irrespective of whether or not the opposing party files an opposition. (Villa v. McFerren (1995) 35 Cal.App.4th 733.)

When a Defendant or Cross-Defendant seeks summary judgment, he/she must show either (1) that one or more elements of the cause of action cannot be established; or (2) that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) When a Plaintiff or Cross-Complainant seeks summary judgment, he/she must produce admissible evidence on each element of each cause of action on which judgment is sought. (Code Civ. Proc., § 437c, subd. (p)(1).) The moving party’s “affidavits must cite evidentiary facts, not legal conclusions or ‘ultimate’ facts” and be strictly construed. (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519; Hayman v. Block (1986) 176 Cal.App.3d 629, 639.)

The opposing party on a motion for summary judgment is under no evidentiary burden to produce rebuttal evidence until the moving party meets his or her initial movant’s burden. (Binder v. Aetna Life Insurance Company (1999) 75 Cal.App.4th 832.) Once the initial movant’s burden is met, then the burden shifts to the opposing party to show, with admissible evidence, that there is a triable issue requiring the weighing procedures of trial. (Code Civ. Proc., § 437c, subd. (p).) The opposing party may not simply rely on his/her allegations to show a triable issue but must present evidentiary facts that are substantial in nature and rise beyond mere speculation. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151.) As to any alternative request for summary adjudication of issues, such alternative relief must be clearly set forth in the Notice of Motion and the general burden-shifting rules apply but the issues upon which summary adjudication may be sought are limited by statute. (Code Civ. Proc., § 437c, subd. (f)(1).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).)

1. Discussion

1. Notice of Bankruptcy Stay

As noted above, on August 8, 2020, Defendants filed a Notice of Stay as a result of Defendant CPK’s Chapter 11 bankruptcy petition. 11 U.S.C. section 362 provides for an automatic stay for proceedings against a debtor defendant following the filing of a bankruptcy petition. Plaintiff objects to Notice of Stay to the extent Defendants attempt to apply the stay to non-debtor Defendant BOP. (9/8/20 Plf. Objection, pp. 1-2.) Indeed, the automatic stay does not usually apply to non-debtor co-defendants. (Higgins v. Superior Court (2017) 15 Cal.App.5th 973, 981.)

Defendants argue the automatic stay in this particular case does extend to non-debtor Defendant BOP because Defendant CPK is defending and indemnifying Defendant BOP in this action. (9/10/20 Def. Reply to Objection, p. 1:18-23.) Courts have recognized a bankruptcy stay may be applied to non-debtor defendants in unusual circumstances. (Totten v. Kellogg Brown & Root, LLC (C.D. Cal. 2016) 152 F.Supp.3d 1243, 1268.) One such circumstance is when the judgment against a non-debtor defendant would in effect be a judgment or a finding against the debtor, such as when the bankruptcy debtor is contractually obligated to indemnify the non-debtor defendant in the same lawsuit. (Id.) However, in such circumstances, the non-debtor defendant must first seek an order from the bankruptcy court extending the automatic stay to the non-debtor defendant. (Id.)

Here, Defendant BOP has not secured an order from the bankruptcy court where Defendant CPK’s bankruptcy petition is pending extending the automatic stay to Defendant BOP. Without that order, the Court cannot extend the bankruptcy stay to a non-debtor defendant.

Thus, this hearing is CONTINUED to allow Defendant BOP the opportunity to obtain such an order from the bankruptcy court. If secured, a copy of the order must be filed with this Court no later than 16 court days before the next scheduled hearing.

1. Conclusion & Order

For the foregoing reasons, Plaintiff Brian Whitaker’s Motion for Summary Judgment is CONTINUED TO FEB 11, 2021 at 11:00 A.M. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Defendants must file supplemental papers as requested herein.

Moving party is ordered to give notice.