Filed 1/4/22 Chango Coffee v. Applied Underwriters CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
CHANGO COFFEE, INC., B297432
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC591586)
v.
APPLIED UNDERWRITERS, INC.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Randolph M. Hammock, Judge. Affirmed.
Thomas Montague Hall for Plaintiff and Appellant.
Fine, Boggs & Perkins, Michael K. Perkins and William D.
Wheelock for Defendant and Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
Plaintiff Chango Coffee, Inc. (Chango) challenges a grant of
summary judgment for defendant Applied Underwriters, Inc.
(AUI). Chango contends the trial court erred by granting
summary judgment because there were triable issues of material
fact as to whether AUI procured workers’ compensation
insurance for Chango, and whether three debits AUI made to
Chango’s bank account in 2012 were permitted by the parties’
contract. Chango also contends the trial court erred by narrowly
construing the complaint and denying Chango leave to amend.
We find no error, and thus we will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. Background
Between 2004 and 2011, Chango operated a small coffee
shop in the Echo Park neighborhood of Los Angeles. In mid-2004,
Chango entered into a contract with AUI, a payroll processing
firm. Pursuant to the contract, AUI agreed to obtain workers’
compensation insurance for Chango and to process its payroll,
and Chango agreed to allow AUI to directly debit Chango’s bank
account in the amount of payroll disbursements plus a
“multiplier” that included payments for workers’ compensation
premiums and AUI’s fee.
The parties’ weekly payroll processing cycle was as follows.
By noon on Tuesdays, Chango faxed AUI its employee earnings
statements, indicating the number of hours worked by each
employee the preceding week. On Thursdays, AUI overnighted
payroll checks to Chango and debited Chango’s bank account in
the amount of the employee payroll checks plus the multiplier.
On Fridays, Chango received the payroll checks and a copy of
AUI’s weekly statement.
2
The relationship between Chango and AUI continued
through the end of 2011. On January 1, 2012, Chango notified
AUI that “ ‘we have sold Chango Coffee, Inc. as of January 1,
2012, and will no longer operate business. As a result, we
request to close our account effective of that date.’ ”
Subsequently, AUI advised Chango that its workers’
compensation insurance coverage had been cancelled effective
January 1, 2012, and “ ‘[a]s a result of this cancellation, we are
reviewing your account to determine any and all amounts due
and owing, and we will provide you a final statement and
supporting documentation as soon as that review is complete.’ ”
On January 4, January 6, and February 7, 2012, AUI
debited Chango’s account in the amounts of $4,054, $2,010, and
$3,794, respectively. AUI’s statements accompanying the first
two debits stated that they were for the pay periods ending
December 25, 2011 and January 1, 2012, respectively. AUI’s
statement accompanying notice of the third debit identified most
of the charge as a “Balance to Minimum Premium Charge;”
subsequent correspondence stated that the applicable workers’
compensation policy “has a Minimum Premium of $5,000,” and
the “balance to minimum charge is $3,126.00.”
B. The Present Action
Chango filed the present action against AUI on January 2,
2014. The complaint, filed as a limited civil action, alleged that
in January and February 2012, AUI accessed Chango’s bank
account and withdrew about $10,000 without Chango’s
permission. Chango alleged that the withdrawn funds were not
used for payroll or service fees, and the withdrawals were not
authorized by the parties’ contract. Chango alleged that these
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withdrawals thus gave rise to causes of action for breach of
contract, conversion, and fraud.
In August 2015, Chango moved to reclassify the case from
limited civil to general civil. It asserted that discovery had
revealed that AUI had failed to procure workers’ compensation
insurance for six of the seven years AUI provided payroll services
for Chango, and thus Chango was entitled to recover at least an
additional $30,000 in contract damages ($5,000 per year for six
years). Thus, the amount in controversy exceeded the
jurisdictional limit of $25,000. The trial court granted the motion
to reclassify.
In November 2017, AUI moved to reclassify the case as a
limited civil case. AUI contended that the complaint did not
allege that it failed to obtain workers’ compensation insurance for
Chango, and Chango had refused to amend the complaint to
include that allegation. AUI thus urged that Chango either
should be ordered to amend the complaint to allege a failure to
procure workers’ compensation insurance or the case should be
reclassified as a limited civil case.
The trial court (Judge Randolph Hammock) denied the
motion to reclassify. Judge Hammock said that another bench
officer had reclassified the case as a general civil case, and “this
court . . . cannot simply reconsider and overrule Judge Sotelo’s
order reclassifying this case to unlimited jurisdiction.”
C. AUI’s Motion for Summary Judgment
In May 2018, AUI moved for summary judgment or, in the
alternative, for summary adjudication. With regard to the
January and February 2012 withdrawals from Chango’s account,
AUI asserted that Chango had given it written authorization to
debit Chango’s bank account weekly for payroll and fees.
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Chango’s January 1, 2012 letter to AUI did not terminate that
authorization, but merely requested that AUI cease providing
payroll services and workers’ compensation insurance as of that
date. Thus, AUI was authorized to debit Chango’s bank account
for the final amounts owed for payroll, insurance, and service fees
through January 1, 2012.
AUI explained that, pursuant to the express terms of the
parties’ contract, it debited Chango’s account three times after
January 1, 2012. First, on January 4, 2012, AUI debited $4,054
for payroll and fees for the pay period ending on December 25,
2011. This was a resubmission of a debit attempted on
December 29, 2011, which Chango’s bank had declined. Second,
on January 6, 2012, AUI debited $2,010 for payroll and fees for
the pay period ending January 1, 2012. Finally, on February 7,
2012, AUI debited $3,794, which was the balance Chango owed
on its workers’ compensation insurance policy. AUI explained
that the workers’ compensation policy had an annual minimum
policy premium of $5,000, and so if a policy was cancelled mid-
year, the insured would be billed the balance owed—i.e., $5,000
less the amount already paid in the current policy year. As of
January 1, 2012, Chango had paid workers’ compensation
premiums of $1,874, and thus its balance due was $3,126 ($5,000
− $1,874 = $3,126), plus a “short-rate premium” of $445 and a
statutory assessment of $223.
With regard to AUI’s alleged failure to procure workers’
compensation insurance, AUI asserted that this claim was not
alleged in the complaint, and it therefore was outside the scope of
the motion for summary judgment. On the merits, AUI
contended that the undisputed facts established that it had
obtained workers’ compensation insurance for Chango
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throughout the term of the parties’ contract. Specifically, AUI
obtained workers’ compensation insurance coverage for Chango
through the Virginia Surety Company from September 3, 2004
until May 31, 2005, and through the California Insurance
Company from June 1, 2005 until January 1, 2012. Copies of the
California Insurance Company policies were authenticated by
AUI’s general counsel and were attached as exhibits to AUI’s
motion for summary judgment. AUI also asserted that it had
sent notices of each year’s policy renewal to Chango, and had
mailed copies of the renewed policies to Chango and to its
insurance agent. Thus, AUI asserted, in light of “the actual
issuance of workers’ compensation policies that were in force at
all times from September 3, 2004 through January 1, 2012, there
can be no question that even [Chango’s] unpled [workers’
compensation] claim lacks merit.”
Finally, specifically with regard to Chango’s claims for
conversion and fraud, AUI asserted that a generalized claim for
money is not actionable as conversion; Chango had consented to
the types of withdrawals that were made from its bank account;
and Chango had failed to allege any specific transaction that
exceeded the purposes agreed to in the written contract.
D. Chango’s Opposition
In opposition to AUI’s motion for summary judgment,
Chango asserted that AUI had revealed in discovery, through the
declaration of its general counsel, Jeffrey Silver, that AUI had
not procured workers’ compensation insurance for Chango as
required by the parties’ written agreement. Further, although
Chango terminated its contract with AUI on January 1, 2012,
AUI continued to withdraw money from Chango’s checking
account until at least February 7, 2012. Chango thus asserted
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that triable issues of material fact existed as to whether AUI had
procured workers’ compensation insurance for Chango and
whether the 2012 debits were authorized by the terms of the
parties’ contract. Finally, Chango urged the motion for summary
judgment should be denied because AUI had refused to allow
Chango to depose attorney Silver about whether AUI had
procured workers’ compensation insurance for Chango.
E. Trial Court’s Order Granting Summary Judgment
The trial court granted the motion for summary judgment
on March 4, 2019. With regard to the breach of contract claim,
the court held that AUI had presented evidence that the debits
from Chango’s bank account in January and February 2012 were
authorized by the parties’ contract, and Chango “does not cite any
evidence sufficient to raise a triable issue of material fact”
suggesting to the contrary. Further, Chango had not pled that
AUI failed to obtain workers’ compensation insurance, and it
“cannot defeat summary judgment by showing a triable issue as
to an unpled theory.” Finally, AUI’s failure to allow Silver to be
deposed was irrelevant to the summary judgment motion because
Chango had not sought to continue the hearing, nor had it
described in its opposition what facts it believed could be
obtained from Silver’s deposition.
With regard to the conversion claim, the court noted that
consent is a complete defense to conversion. AUI had presented
evidence, which Chango did not dispute, that the parties’ contract
permitted AUI to withdraw funds from Chango’s bank account
for payroll and business services. Further, as to the February 7,
2012 withdrawal, AUI had submitted a copy of the workers’
compensation policy in effect from September 2011 to September
2012, with Chango as the named insured. As such, there was no
7
conversion of funds because Chango at least impliedly consented
to deductions from its account for premiums and other
mandatory charges.
Finally, with regard to the fraud claim, the court found that
AUI had cited evidence that all of its withdrawals from Chango’s
bank account were permitted under the contract, and Chango
failed to cite any evidence sufficient to raise a triable issue of
material fact on this issue.
Judgment for AUI was entered on May 13, 2019. Chango
timely appealed.
DISCUSSION
Chango contends: (1) the trial court erred in summarily
adjudicating each of its causes of action, and (2) the trial court
abused its discretion by denying leave to amend the complaint.
As we discuss, these claims lack merit.
I.
Legal Standards and Standard of Review
“Code of Civil Procedure section 437c, subdivision (c)
provides that summary judgment is to be granted when there is
no triable issue of material fact and the moving party is entitled
to judgment as a matter of law. A defendant ‘moving for
summary judgment bears an initial burden of production to make
a prima facie showing of the nonexistence of any triable issue of
material fact.’ (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th
826, 850 (Aguilar).) A defendant may meet this burden either by
showing that one or more elements of a cause of action cannot be
established or by showing that there is a complete defense.
(Ibid.)
“If the defendant’s prima facie case is met, the burden
shifts to the plaintiff to show the existence of a triable issue of
8
material fact with respect to that cause of action or defense.
(Aguilar, supra, 25 Cal.4th at p. 849; Silva v. Lucky Stores, Inc.
(1998) 65 Cal.App.4th 256, 261.) ‘[T]o meet that burden, the
plaintiff “may not rely upon the mere allegations or denials of its
pleadings . . . but, instead, shall set forth the specific facts
showing that a triable issue of material fact exists as to that
cause of action . . . .” ’ (Merrill v. Navegar, Inc. (2001) 26 Cal.4th
465, 476–477.) Ultimately, the moving party ‘bears the burden of
persuasion that there is no triable issue of material fact and that
he is entitled to judgment as a matter of law.’ (Aguilar, at
p. 850.)
“We review a summary judgment ruling de novo to
determine whether there is a triable issue as to any material fact
and whether the moving party is entitled to judgment as a matter
of law. (Certain Underwriters at Lloyd’s of London v. Superior
Court (2001) 24 Cal.4th 945, 972.) ‘ “Since defendant[ ] obtained
summary judgment in [its] favor, ‘we review the record de novo to
determine whether [it has] conclusively negated a necessary
element of the plaintiff's case or demonstrated that under no
hypothesis is there a material issue of fact that requires the
process of trial.’ ” ’ (Saelzler v. Advanced Group 400 (2001)
25 Cal.4th 763, 767.)” (Hedayatzadeh v. City of Del Mar (2020)
44 Cal.App.5th 555, 560–561.)
We review for an abuse of discretion the trial court’s
decision to deny Chango leave to amend its complaint. (Levy v.
Skywalker Sound (2003) 108 Cal.App.4th 753, 770–771; Mesler v.
Bragg Management Co. (1985) 39 Cal.3d 290, 296–297.)
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II.
The Trial Court Did Not Err by Summarily Adjudicating
Chango’s First Cause of Action for Breach of Contract
Chango contends the trial court erred by summarily
adjudicating its first cause of action for breach of contract. For
the reasons that follow, this claim lacks merit.
A. Post-Termination Withdrawals
As discussed, the trial court found that AUI had presented
evidence that its January and February 2012 withdrawals from
Chango’s bank account were authorized by the parties’ contract,
and Chango did not cite any contrary evidence in response. On
appeal, Chango does not appear to challenge the propriety of the
first two withdrawals, but it urges that the third, a purported
final workers’ compensation insurance premium, was improper
because “[b]illing for insurance premiums after the contract
ended clearly contradicts AUI’s claim that the contract called for
‘pay-as-you-go . . . each pay period.’ ”
The “pay-as-you-go” language—for which Chango does not
provide a citation—appears to derive from an “Integrated Service
Proposal and Rate Quotation” (proposal) that AUI provided to
Chango in 2004. Chango has not demonstrated, however, that
this language was a term of the parties’ contract, nor has it
shown how such language, even if part of the contract, was
violated by the February 7 withdrawal.
“In order to demonstrate error, an appellant must supply
the reviewing court with some cogent argument supported by
legal analysis and citation to the record. Rather than scour the
record unguided, we may decide that the appellant has waived a
point urged on appeal when it is not supported by accurate
citations to the record. (Cal. Rules of Court, rule 8.204(a)(1)(C);
10
City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239 &
fn. 16; Pierotti v. Torian (2000) 81 Cal.App.4th 17, 29–30; Kim v.
Sumitomo Bank (1993) 17 Cal.App.4th 974, 979.) Similarly, we
may disregard conclusory arguments that are not supported by
pertinent legal authority or fail to disclose the reasoning by
which the appellant reached the conclusions he wants us to
adopt. (Dills v. Redwoods Associates, Ltd. (1994) 28 Cal.App.4th
888, 890, fn. 1; Cal. Rules of Court, rule 8.204(a)(1)(B).)” (City of
Santa Maria v. Adam (2012) 211 Cal.App.4th 266, 286–287.) In
the present case, therefore, because Chango has not provided any
legal or factual citations for its assertion that AUI’s 2012 debits
violated the parties’ contract, we shall not address it on the
merits.
B. Failure to Procure Workers’ Compensation Insurance
Chango’s primary contention with regard to its breach of
contract claim is that the trial court erred by failing to consider
its assertion that AUI failed to obtain workers’ compensation
insurance on Chango’s behalf. According to Chango, its cause of
action for breach of contract was broad enough to encompass the
workers’ compensation allegation, and thus the trial court erred
in finding that its workers’ compensation claim was not included
within its “original causes of action.”
We do not agree. The pleadings play a key role in a
summary judgment motion and “ ‘ “ ‘set the boundaries of the
issues to be resolved at summary judgment.’ ” ’ (Nativi v.
Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261,
289.) ‘[T]he scope of the issues to be properly addressed in [a]
summary judgment motion’ is generally ‘limited to the claims
framed by the pleadings. [Citation.] A moving party seeking
summary judgment or adjudication is not required to go beyond
11
the allegations of the pleading, with respect to new theories that
could have been pled, but for which no motion to amend or
supplement the pleading was brought, prior to the hearing on the
dispositive motion. [Citations.]’ (Howard v. Omni Hotels
Management Corp. (2012) 203 Cal.App.4th 403, 421.)” (Jacobs v.
Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th
438, 444.)
Here, the entirety of Chango’s breach of contract claim, as
set forth in its pleading, was as follows:
¶ 1: “[O]n or about June 1, 2005 a . . . written agreement
was made between [Chango] and [AUI]. . . . The essential terms
of the agreement are [that] [AUI] would provide, inter alia,
payroll processing and payment services for [Chango], and
[Chango] would allow [AUI] access to [Chango’s] checking
account to write payroll checks and debit service fees. [AUI]
falsely represented that all charges would be billed and debited
per month.”
¶ 2: “On or about January 3, 4, 6 and February 7, 2012,
[AUI] breached the agreement by . . . [a]ccessing [Chango’s]
checking account and withdrawing [Chango’s] funds without
permission and without justification or purpose under the
contract between [Chango] and [AUI].”
¶ 3: “[Chango] has performed all obligations to [AUI]
except those obligations [Chango] was prevented or excused from
performing.”
¶ 4: “[Chango] suffered damages legally (proximately)
caused by [AUI’s] breach of the agreement as follows:
Approximately $10,000 withdrawn from [Chango’s] checking
account; Loss of use of money since improper withdrawal
(conversion) by [AUI].” (Italics added.)
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These allegations—that AUI breached the parties’
agreement by withdrawing money from Chango’s bank account
“[o]n or about January 3, 4, 6 and February 7, 2012”—manifestly
did not put AUI on notice that Chango was also alleging that AUI
breached the agreement by failing to procure workers’
compensation insurance for Chango between 2005 to 2012. And,
while Chango could have amended its complaint to broaden its
breach of contract claim, it never did so.1 Thus, the trial court
did not err in refusing to consider Chango’s evidence that AUI
failed to procure workers’ compensation insurance.
In any event, even had the trial court considered Chango’s
“evidence,” the result necessarily would have been the same. In
support of its motion for summary judgment, AUI submitted the
declaration of Jeffrey Silver, its general counsel and corporate
secretary. Silver declared that AUI initially obtained workers’
1 Chango contends that the complaint embraced the workers’
compensation insurance claim because the contract was
“ ‘integrated’ ” and “included both workers’ compensation
insurance and payroll processing.” Chango urges that its
workers’ compensation insurance claim therefore “fit precisely
under the existing cause of action for breach of contract.” Not so.
Although the parties’ contract contained a variety of terms,
including terms addressing both payroll processing and workers’
compensation insurance, the pleading rules required Chango to
specifically allege which terms it claimed AUI violated. (E.g.,
Melican v. Regents of University of California (2007)
151 Cal.App.4th 168, 174 [“It is well settled a pleader must state
with certainty the facts constituting a breach of contract”]; see
also Levy v. State Farm Mutual Automobile Ins. Co. (2007)
150 Cal.App.4th 1, 5 [“Facts alleging a breach, like all essential
elements of a breach of contract cause of action, must be pleaded
with specificity.”].)
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compensation insurance for Chango through Virginia Surety
Company, which issued a policy to Chango effective September 3,
2004. AUI acquired California Insurance Company in 2005, and
it provided workers’ compensation insurance to Chango through
California Insurance Company from June 1, 2005 until January
2012. Copies of those policies were verified by Silver and were
attached as Exhibits J through P to AUI’s notice of lodgment.
In opposition to AUI’s motion for summary judgment,
Chango asserted that Silver’s declaration “directly contradict[ed]”
his earlier “declaration,” signed on January 13, 2015, which
“disclosed that [AUI’s] files did not include insurance policies for
any policy issued to [Chango], and did not include transmittal
letters for policies or for changes in policies [or] insurers.” The
“declaration” to which Chango refers is Silver’s verification,
submitted with AUI’s response to Chango’s request for
production of documents, which stated that “I am informed and
believe that the matters stated [in AUI’s discovery responses] are
true and on that ground certify or declare under penalty of
perjury under the laws of the State of California that the same
are true and correct.” Silver’s verification did not say, as Chango
asserted in the trial court and asserts on appeal, that AIU “did
not have any records of having provided workers’ compensation
insurance to [Chango].”
Although Silver’s verification did not contain an affirmative
statement about workers’ compensation insurance, Chango
attributes such a statement to the verification because the
documents produced by AUI in response to Chango’s request for
production of documents “did not include any insurance policies”
and “did not include any record that any of the insurance
premiums paid by [Chango] to [AUI] had been paid to any
14
insurance company for insurance policies.” Thus, Chango
suggests, Silver’s verification creates a triable issue of material
fact as to AUI’s procurement of workers’ compensation insurance
policies for Chango.
Not so. As AUI correctly notes, Chango never sought
production of copies of its workers’ compensation insurance
policies or of all documents possessed by AUI concerning Chango.
Instead, Chango’s document request was much narrower: It
sought the contents of the files (1) “referred to as ‘my file on
Chango’ by [AUI employee] Ed Karmazin . . . [in] his declaration
of April 17, 2014,” and (2) “that refer or relate to Chango in each
of the files referred to as ‘our files’ by Ed Karmazin [in] his
declaration of April 17, 2014.” 2 Silver’s verification, therefore,
stated only that AUI had produced the copies of the contents of
the identified files—not that it had produced all of AUI’s records
concerning Chango. Accordingly, nothing in Silver’s 2015
verification contradicted his subsequent declaration that AUI
provided Chango with workers’ compensation insurance at all
times between September 3, 2004 and January 2012.
Chango also contends that the trial court “weighed” Silver’s
testimony “and found some of his declaration credible, and some
not.” Again, not so. Instead, the trial court found—as do we—
that AUI’s failure to produce copies of the workers’ compensation
policies “does not mean that such polic[ies] never existed,” and
2 Karmazin’s declaration stated that he maintained a copy of
the contract between Chango and AUI in “my file on Chango.”
He further stated that copies of the biweekly reporting forms
Chango sent to AUI were maintained in AUI’s contract-
processing file in Omaha, Nebraska.
15
thus that Chango had failed to raise a triable issue of material
fact as to the alleged nonexistence of the policies.
In short, there is absolutely no evidence, and Chango
pointed to none, that AUI failed to procure workers’
compensation insurance for Chango at any time between 2005
and 2011. The trial court therefore did not err in summarily
adjudicating Chango’s first cause of action for breach of contract.
III.
The Trial Court Did Not Err by Summarily Adjudicating
Chango’s Second and Third Causes of Action
(Conversion and Fraud)
Chango’s second cause of action (conversion) alleges that
AUI converted Chango’s funds by withdrawing sums from
Chango’s bank account in January and February 2012 “that were
not authorized under any portion of the contract between
[Chango] and [AUI].” Chango’s third cause of action (fraud)
alleges that AUI promised to access Chango’s bank account only
for the purposes agreed to in the contract between the parties,
but this representation was false because AUI “intended to
withdraw funds from [Chango’s] checking account for its own
uses and it used its access to [Chango’s] checking account to
withdraw amounts not incurred by [Chango] for the services
provided by [AUI].”
Chango contends that the trial court erred by summarily
adjudicating the conversion and fraud causes of action for
essentially the same reason it urged error with regard to the
breach of contact claim—namely, it argues that Silver’s
verification of AUI’s document request created a triable issue of
material fact as to whether AUI obtained workers’ compensation
16
insurance on Chango’s behalf. That contention fails for the
reasons discussed above. (See section II, ante.)
Chango also urges that the February 12 withdrawal was
not justified by the terms of the workers’ compensation policies
because such policies “were not issued until after the contract
was formed” and, therefore, were “not part of the parties[’]
contract formed in 2004.” Chango does not support this assertion
with any citation to legal authority or to the record, and thus we
do not consider it. (See City of Santa Maria v. Adam, supra,
211 Cal.App.4th at pp. 286–287.)
IV.
The Trial Court Did Not Abuse Its Discretion
by Refusing to Allow Chango to Amend Its Complaint
Chango contends, finally, that the trial court abused its
discretion by denying its oral motion to amend the complaint. We
do not agree. As noted above, the pleadings delimit the issues to
be considered on a motion for summary judgment, and thus a
defendant moving for summary judgment need address only the
issues raised by the complaint. In other words: “To create a
triable issue of material fact, the opposition evidence must be
directed to issues raised by the pleadings. [Citation.] If the
opposing party’s evidence would show some factual assertion,
legal theory, defense or claim not yet pleaded, that party should
seek leave to amend the pleadings before the hearing on the
summary judgment motion.” (Distefano v. Forester (2001)
85 Cal.App.4th 1249, 1264–1265, italics added; see also Huff v.
Wilkins (2006) 138 Cal.App.4th 732, 746 [trial court did not abuse
its discretion by denying leave to amend complaint three days
before summary judgment hearing: “ ‘ “[E]ven if a good
amendment is proposed in proper form, unwarranted delay in
17
presenting it may—of itself—be a valid reason for denial.” ’ ”];
Levy v. Skywalker Sound, supra, 108 Cal.App.4th at pp. 770–771
[trial court did not abuse its discretion in declining to allow
plaintiff to amend its complaint where plaintiff “did not explain
why he waited several months . . . to seek leave to amend his
complaint; did not file a procedurally proper motion for leave to
amend; and did not request a continuance of the hearing on the
summary judgment motion in order to pursue the matter.”].)3
In the present case, Chango does not assert on appeal, nor
does the record show, that Chango sought leave to amend its
complaint prior to the hearing on AUI’s motion for summary
judgment. Instead, Chango made this request for the first time
at the summary judgment hearing, after the trial court indicated
that its tentative was to grant the motion. The trial court
therefore did not abuse its discretion in denying the request to
amend as untimely.
Further, even had the trial court abused its discretion by
denying leave to amend, any such error was harmless. As
discussed above, Chango failed in opposition to the motion for
summary judgment to identify any evidence to support its claim
3 Kirby v. Albert D. Seeno Construction Co. (1992)
11 Cal.App.4th 1059, 1067–1068, on which Chango relies,
addresses a somewhat different issue—namely, whether a
plaintiff should have been permitted to amend its complaint after
defendant filed a purported motion for summary judgment that
was “unsupported by declarations or other evidentiary material,”
and thus “functioned more like a challenge to the sufficiency of
the pleadings” (id. at p. 1067). In the present case, in contrast,
AUI supported its motion with evidentiary material, and thus
permitting Chango to amend the complaint likely would have
required the parties to take additional discovery.
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that AUI failed to procure workers’ compensation insurance.
Thus, even if Chango had been permitted to amend the
complaint, summary judgment still would have been proper.
DISPOSITION
The judgment is affirmed. Respondent AUI is awarded its
appellate costs.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
LAVIN, J.
KNILL, J.*
* Judge of the Orange County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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