Opinion
F074508
11-06-2018
MANUEL AREVALO, Plaintiff and Appellant, v. GIUMARRA FARMS, INC., et al., Defendants and Respondents.
Law offices of Eugene R. Lorenz and Eugene R. Lorenz for Plaintiff and Appellant. Littler Mendelson, Matthew E. Farmer, Irene V. Fitzgerald; Quall Cardot and Mary E. Krugh for Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CV281395)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Sidney P. Chapin, Judge. Law offices of Eugene R. Lorenz and Eugene R. Lorenz for Plaintiff and Appellant. Littler Mendelson, Matthew E. Farmer, Irene V. Fitzgerald; Quall Cardot and Mary E. Krugh for Defendants and Respondents.
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Manuel Arevalo (plaintiff) sued Giumarra Farms, Inc. (Giumarra Farms), and Miguel Ahumada, Jr. (Ahumada), (collectively, defendants) for breach of contract and other torts. After two years of litigation, defendants filed motions for summary judgment. Shortly before plaintiff's oppositions were due, he filed a procedurally defective request for a continuance. Plaintiff later filed untimely opposition papers.
The trial court refused to grant a continuance or consider plaintiff's late-filed oppositions. Consequently, defendants were awarded summary judgment. On appeal, plaintiff contends the trial court erred by not continuing the summary judgment proceedings. He does not deny the untimeliness of his oppositions or address the merits of defendants' motions. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In February 2014, plaintiff, his wife, Maria, and a woman named Iris Rendon filed a complaint against defendants and two other individuals: John Giumarra, Jr., and Miguel Ahumada, Sr. As a result of demurrers and motions to strike, the pleadings were amended five times. Iris Rendon, John Giumarra, Jr., and Miguel Ahumada, Sr., were dismissed from the case prior to the operative fifth amended complaint, which was filed May 2, 2016.
Plaintiff and Maria Arevalo asserted a cause of action for intentional infliction of emotional distress (IIED) against both defendants. Plaintiff made additional claims against Giumarra Farms for breach of contract, fraud in the inducement, and a "common count" for monetary indebtedness. Maria Arevalo was later dismissed and is not a party to this appeal.
Plaintiff claimed to have entered into oral contracts with Giumarra Farms by and through its alleged agent, Ahumada, for "the picking, packing and transporting of grapes" at an agreed upon price of "$10.50 per box of grapes picked." In October 2013, plaintiff allegedly performed his obligations under the first contract and delivered 12,259 boxes of grapes, entitling him to payment of $128,719.50. In November 2013, plaintiff allegedly performed his obligations under the second contract and delivered 16,149 boxes of grapes, entitling him to payment of $169,564.50.
Ahumada, purportedly acting on behalf of Giumarra Farms, made cash payments to plaintiff totaling $98,000. Plaintiff deposited the money into his bank account, informed Ahumada he had done so, and inquired of "where to send the receipt." In response, Ahumada "became very angry and told [plaintiff] no further payment would be forthcoming ... and that [plaintiff] would not work for Giumarra Farms again, that he would be 'starved out of business.'" The remaining balance of $200,284 was never paid.
Giumarra Farms was accused of acting in bad faith from the outset. The allegations are detailed in paragraphs 7 and 20 of the operative complaint:
"Giumarra Farms engaged, and engages, in a business practice of entering contracts, obtaining performance from its contractors, and then seeking to reduce its payment obligations by the use of cash payments in an amount less than the contract price, which can be called the 'cash in the field' program. Giumarra Farms gives Ahumada ... who is known as Giumarra Farms' 'enforcer', five to seven checks per day drawn on Giumarra Farms' bank accounts, made payable to Ahumada ..., with each one for an amount slightly less than $10,000 for 'tax purposes', meaning so as not to trigger a bank's legal obligation to notify the Internal Revenue Service or other government agency of the transaction and thus to avoid scrutiny of the transaction. Ahumada ... would then go to [different banks] in the Bakersfield area, and [cash the checks]. Ahumada ... and/or Ahumada Sr. would then drive to various Kern County farm locations and engage with a Giumarra Farms contractor like [plaintiff] for the purpose of 'negotiating' settlement of outstanding contractor accounts for less than their agreed-upon value by offering to pay cash and representing that cash payment 'under the table' is worth essentially the same amount as payment of the full contract price 'over the table' because it avoids tax and other governmental liability. Ahumada ... and/or Ahumada Sr. would so engage in an aggressive and threatening manner, by demanding that the contractor accept such payment as payment in full and that such contractor not declare its receipt to the Internal Revenue Service or otherwise account for it according to standard business practices, including by deposit in a bank, and threatening to withhold payment and to deny the contractor future work if the contractor did not cooperate as requested. [¶] ... [¶] ... At the time of contract formation, [defendants] had no intention of paying the agreed contract price of $10.50 per box of grapes."
In January 2014, plaintiff's legal counsel served a demand letter upon Giumarra Farms for the unpaid contractual balance. On the same day, Ahumada made direct contact with plaintiff "by cell phone text messages, saying in English[,] 'tell your lawyer to fuck off' and 'you have the wrong company, dickhead', and in Spanish[,] 'this Monday we're going to come looking for you so go hide yourself asshole we're going to fuck you up.'" These text messages, and the earlier threat of "economic starvation," formed the basis of plaintiff's IIED claim.
By January 2015, the parties had begun to exchange written discovery. Plaintiff's deposition was taken on March 31, 2016. On June 23, 2016, and July 1, 2016, Giumarra Farms and Ahumada filed their respective motions for summary judgment or, in the alternative, summary adjudication. The motions were scheduled to be heard on September 19, 2016.
Accounting for the Labor Day holiday, plaintiff's oppositions were due on Tuesday, September 6, 2016. (Code Civ. Proc., § 437c, subd. (b)(2).) The record contains an attorney declaration stating plaintiff "did not notice a single deposition in this action until August 4, 2016, when he noticed the depositions of non-party Miguel Ahumada Sr. for August 17, 2016, and [Ahumada], on August 22, 2016. The deposition of John Giumarra Jr., was not noticed until August 8, 2016 and was set for August 31, 2016."
Unless otherwise specified, all statutory references are to the Code of Civil Procedure.
On Friday, September 2, 2016, plaintiff filed a document entitled, "Motion For Continuance To Take Additional Essential Discovery Pursuant To C.C.P. §437c(h) and Partial Answer To Summary Judgment of Giumarra Farms, Inc. and Miguel 'Mike' Ahumada, Jr." (Full capitalization & boldface omitted.) The moving papers consisted of a single-page, one-sentence notice of motion (which did not specify a hearing date), and a declaration by plaintiff's counsel with attachments. Counsel's declaration is summarized in our Discussion, post. In general, the declaration alleged a need to (1) conduct further investigation into Ahumada's criminal background, (2) depose witnesses associated with other "Giumarra entities," and (3) eventually amend the pleadings "to add additional Giumarra entities as defendants."
On September 7, 2016, plaintiff filed oppositions to the summary judgment motions. On September 14, 2016, plaintiff filed an ex parte application for an "order shortening time pursuant to C.C.P. §437c(h)." (Full capitalization & boldface omitted.) In the application, plaintiff claimed the depositions of Ahumada, John Giumarra, Jr., and Miguel Ahumada, Sr., had "revealed new witnesses to depose and new Giumarra entities to be named as defendants in this case through an amended complaint."
Ahumada filed an opposition to the ex parte application and plaintiff's earlier motion. Giumarra Farms filed an opposition to the ex parte application, which also addressed points raised in the September 2, 2016, declaration of plaintiff's counsel. Ahumada's opposition focused on why the proposed additional discovery was irrelevant to the issues on summary judgment. The opposition of Giumarra Farms raised similar points and demonstrated, through evidence of prior written discovery, that plaintiff had long been aware of information he was now implying had only recently been "revealed."
The trial court denied plaintiff's request for a continuance based on procedural defects and failure to meet the "substantive requirements" of section 437c, subdivision (h) (section 437c(h)). Defendants were found to have satisfied their evidentiary burdens on summary judgment, thereby shifting those burdens to plaintiff. Citing numerous errors, the trial court declined to consider plaintiff's oppositions. First, "the opposition papers to both motions were untimely and were without a prior order of the Court extending time within which to serve and file oppositions." Second, an improper method of service (first class mail) had been used in violation of section 1005, subdivision (c). Third, plaintiff had violated rule 3.1350(f)(2) of the California Rules of Court, which requires the opposing party to "unequivocally state," for each item in the separate statements of undisputed material facts, "whether that fact is 'disputed' or 'undisputed,'" and fully explain the nature of any disputes. In addition, with regard to the motion of Giumarra Farms, plaintiff's responsive separate statement and memorandum of points and authorities were inexplicably directed to John Giumarra, Jr., and "Giumarra Vineyards Corporation."
On September 19, 2016, defendants' motions were granted in full. On October 4, 2016, plaintiff filed a premature notice of appeal. This court later deemed the notice of appeal to have been taken from judgments entered on October 20, 2016.
DISCUSSION
I. Standard of Review
The denial of a continuance request made pursuant to section 437c(h) is reviewed for abuse of discretion. (Combs v. Skyriver Communications, Inc. (2008) 159 Cal.App.4th 1242, 1270; Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 254.) Plaintiff implies such abuse may be found if the trial court fails to identify the "substantive factors" upon which its ruling is based. His position is untenable. "[I]f a judgment is correct on any theory, the appellate court will affirm it regardless of the trial court's reasoning." (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.) "We imply all findings necessary to support the judgment, and our review is limited to whether there is substantial evidence in the record to support these implied findings." (In re Marriage of Cohn (1998) 65 Cal.App.4th 923, 928; accord, Hall v. Municipal Court (1974) 10 Cal.3d 641, 643.) Plaintiff must affirmatively demonstrate error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)
The merits of defendants' motions are reviewed de novo. (Distefano v. Forester (2001) 85 Cal.App.4th 1249, 1258.) Even in the absence of a formal opposition, the moving party must satisfy its initial burden to show there are no triable issues. (Thatcher v. Lucky Stores, Inc. (2000) 79 Cal.App.4th 1081, 1086-1087.) "We must affirm a summary judgment if it is correct on any of the grounds asserted in the trial court, regardless of the trial court's stated reasons." (Grebing v. 24 Hour Fitness USA, Inc. (2015) 234 Cal.App.4th 631, 637.)
II. Plaintiff's Filings Were Defective and Untimely
Section 437c(h) provides:
"If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due."
Pursuant to the statutory language, there are two alternative methods by which a party may seek a continuance: the request can be made via "affidavits submitted in opposition to a motion for summary judgment" or "by ex parte motion at any time on or before the date the opposition response to the motion is due." (§ 437c(h).) As noted by the trial court, plaintiff's affidavit of September 2, 2016, was not submitted with oppositions to defendants' motions. The oppositions were belatedly filed on September 7, 2016. Plaintiff also submitted an ex parte application, but those papers were filed September 14, 2016, which was not "on or before the date the opposition response to the motion [was] due." (Ibid.)
Given the procedural defects, the trial court was under no obligation to grant a continuance. (See Tilley v. CZ Master Assn. (2005) 131 Cal.App.4th 464, 490-491 ["Because [plaintiff's] request was not filed as part of his opposition to the motion, it did not fall within the parameters of [§ 437c(h)]]; Thatcher v. Lucky Stores, Inc. (2000) 79 Cal.App.4th 1081, 1083 ["the trial court was not required to continue the summary judgment motion under [§ 437c(h)], because plaintiffs' continuance request was not included in [a] timely filed opposition to the summary judgment motion and plaintiffs failed to establish that facts essential to justifying opposition might exist"].) Despite plaintiff's mistakes, the trial court had discretion to grant his request if it believed a continuance was warranted. (Tilley, at p. 491.) The question is whether the trial court abused its discretion. (Ibid.) "An abuse of discretion occurs if, in light of the applicable law and considering all of the relevant circumstances, the court's decision exceeds the bounds of reason and results in a miscarriage of justice." (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1422.)
Plaintiff cites case law identifying factors relevant to determining the propriety of a section 437c(h) continuance: "(1) how long the case has been pending; (2) how long the requesting party had to oppose the motion; (3) whether the continuance motion could have been made earlier; (4) the proximity of the trial date or the 30-day discovery cutoff before trial; (5) any prior continuances for the same reason; and (6) the question whether the evidence sought is truly essential to the motion." (Chavez v. 24 Hour Fitness USA, Inc. (2015) 238 Cal.App.4th 632, 644, citing Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2015) ¶ 10:208.1, pp. 10-85 to 10-86.) Most of these factors weigh in favor of the trial court's ruling. The case had been pending for two and a half years. Trial was seven weeks away. Defendants' motions were filed on June 23, 2016, and July 1, 2016, which gave plaintiff nearly 10 weeks to prepare oppositions.
Since plaintiff did not begin taking depositions until the third week of August, it is reasonable to infer he knew or should have known of the need for a continuance well in advance of his request. As of August 22, 2016, plaintiff had deposed only two witnesses. John Giumarra, Jr., was set to be deposed in his individual capacity on August 31, 2016, just days prior to the opposition deadline, and the deposition of Giumarra Farms' corporate representative had not even been scheduled. Thus, the continuance could have been sought earlier. All of these factors are relevant, but the most important consideration is the one specified in section 437c(h): whether "facts essential to justify opposition may exist but cannot, for reasons stated, be presented ...." (Italics added.) As we will explain, the requisite showing was not made.
With regard to the oppositions, a trial court has discretion to summarily refuse to consider untimely papers when ruling on a motion. (Cal. Rules of Court, rule 3.1300(d).) Plaintiff does not deny his opposition papers were untimely. More importantly, he does not claim the trial court's refusal to consider them was an abuse of discretion. Since the issue has not been raised, we express no opinion on that aspect of the summary judgment rulings.
III. Ahumada Was Entitled to Summary Judgment
A. Applicable Law
The lone cause of action against Ahumada was IIED. The elements of this claim are "'(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.'" (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 209.) The defendant's behavior "'must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.'" (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 300.) The element of outrageous conduct generally presents a question of fact, but the issue can sometimes be determined on summary judgment as a matter of law. (Trerice v. Blue Cross of California (1989) 209 Cal.App.3d 878, 883; see Barker v. Fox & Associates (2015) 240 Cal.App.4th 333, 356 and cited cases ["many cases have dismissed intentional infliction of emotional distress cases on demurrer, concluding that the facts alleged do not amount to outrageous conduct as a matter of law"].)
The California Supreme Court has "set a high bar" for the second element. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1051.) "Severe emotional distress means '"emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it."'" (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1004.) Liability "'"does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities."'" (Hughes, at p. 1051.) The question of whether alleged harm rises to the level of severe emotional distress may be determined as a matter of law. (See ibid. [affirming summary judgment; "plaintiff's assertions that she has suffered discomfort, worry, anxiety, upset stomach, concern, and agitation" held to be insufficient].)
B. Defense Evidence
Ahumada's motion relied on plaintiff's deposition testimony. Plaintiff twice confirmed the sole basis for his IIED claim was a series of text messages sent by Ahumada on January 2, 2014. The messages were sent after Ahumada learned plaintiff had demanded payment from Giumarra Farms. His exact statements were as follows: "Call me motherfucker [¶] Hey you dont have contract so tell you And ur lawyer to fuck off! You have the wrong Company dick head [¶] Answers the phone pussy este lunes te vamos ir ha buscar so veté escondiendo puto te va lluevar ha la chingada[.]" (Original misspellings & grammatical errors.)
Plaintiff interpreted the words in Spanish to mean, "I'm going to go over there this Monday so you better hide. If not I'm going to fuck you up or kill you or whatever." When pressed on the last part, plaintiff testified, "[It meant] he was going to come and fuck me over. Or I don't know. They're dangerous. I don't know them. I don't know if he's going to come and—I got scared. I even sent my wife to Mexico. I don't know. I don't know how dangerous they are."
In terms of emotional distress, plaintiff testified the threat caused him to become scared and "stressed out." His sleep patterns changed, going from an average of eight to ten hours per night to six hours, waking up intermittently. He also experienced headaches, for which he took Tylenol for relief. In addition, plaintiff and his wife met with a marriage counselor approximately four or five times on unspecified dates. However, plaintiff attributed his emotional distress in part to the financial losses he suffered from nonpayment on the contracts. For example: "I wasn't able to sleep because—I had to see how to get the money that I didn't have. I was in a bad mood at my—in my—at my house because ... I couldn't find out how to do it to—to handle that problem."
C. Asserted Grounds for Continuance
The September 2, 2016, declaration of plaintiff's counsel begins with these assertions: "2. The depositions of John Giumarra, Jr. (August 31, 2016), [Ahumada] (August 22, 2016), and Miguel Ahumada, Sr. (August 17, 2016) necessitate Amendment of the complaint to add additional Giumarra entities as defendants. [¶] 3. Additional discovery and depositions will need to be taken to fully answer both summary judgment motions in this case."
In paragraphs 6 and 7, counsel states Ahumada admitted to four prior felony convictions at his deposition. Based on Ahumada's disclosure of identifying information, e.g., birth date and driver's license number, "[s]ecurity experts are now checking his record." These statements seem to imply more time is needed to research Ahumada's criminal background.
In paragraph 18, counsel alleges "[t]errorist threats" were made against plaintiff. Paragraph 19 refers to an attached declaration of plaintiff's "security expert," which was executed on February 27, 2014, i.e., 30 months earlier. The same declaration had previously been filed as an attachment to plaintiff's original complaint. Within the attached declaration, the security expert opined Ahumada's text messages to plaintiff constituted "terrorist threats."
In paragraph 21, reference is made to attached transcript excerpts from Ahumada's deposition wherein he acknowledges a criminal record. In paragraphs 23 and 24, plaintiff's counsel complains of John Giumarra, Jr.'s refusal to answer deposition questions about Ahumada's alleged terrorist threats. Paragraph 28 references an attached declaration by Ahumada's supposed former assistant, Iris Rendon, regarding the "'cash in the field' program" alleged in the pleadings. Rendon's declaration was executed in 2014 and previously filed as an attachment to the original complaint. In her declaration, she claimed to have seen the subject text messages and alleged "[t]he abusive and coarse threatening language is the manner in which [Ahumada] talks to labor contractors, swampers, laborers and some personnel."
John Giumarra, Jr., is a licensed attorney and provided legal representation for Ahumada in early stages of the case. John Giumarra, Jr., was represented by counsel at his August 31, 2016, deposition, and he was advised to assert the attorney-client privilege in response to questioning about Ahumada's text messages.
The above information summarizes all portions of the September 2, 2016, declaration relating to the IIED claim. The declaration does not address the element of extreme emotional distress. Plaintiff's counsel's subsequent declaration of September 14, 2016, in support of the ex parte application, does not address the IIED claim.
D. Analysis
Regarding the element of outrageous conduct, "'it is generally held that there can be no recovery for mere profanity, obscenity, or abuse, without circumstances of aggravation ....'" (Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1128.) Ahumada's vulgar language was clearly not actionable. A closer issue is the significance of his text message in Spanish, for which the record provides no definitive translation. Threats are generally insufficient to support an IIED claim, but outrageous conduct has been found where plaintiffs were subjected to specific and repeated threats of death or serious bodily injury. In Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, graphically detailed threats of bodily harm were made via e-mail messages and posts to online message boards. (Id. at pp. 796, fn. 6, 809.) In Kiseskey v. Carpenters' Trust for So. California (1983) 144 Cal.App.3d 222, the plaintiff was first told he would be "'put in the hospital,'" and later threatened with death and harm to his children. (Id. at p. 229.) Here, plaintiff received one threat of harm, sent via text message, and he testified nothing more came of it. Ahumada never contacted him again.
The defense evidence was conclusive on the issue of severe emotional distress. Plaintiff's allegations of restless sleep, mild headaches, and general fright are analogous to the type of harm deemed insufficient in Hughes. (Hughes v. Pair, supra, 46 Cal.4th at p. 1051.) The fact he and his wife attended a few sessions with a marriage counselor or therapist does not change the analysis. The alleged harm is simply not the type of severe or extreme emotional injury that is compensable in tort. (See Wong v. Jing (2010) 189 Cal.App.4th 1354, 1377-1378 [plaintiff's loss of sleep, upset stomach, and generalized anxiety held "not the sort of serious emotional distress with which a reasonable, normally constituted person would be unable to cope"].) Furthermore, plaintiff's concession that some of his distress arose from financial losses of approximately $200,000 helped refute the element of proximate causation.
Ahumada's evidence shifted the burden to plaintiff on the issues of outrageous conduct and severe/extreme emotional distress. To obtain a continuance under section 437c(h), plaintiff needed to show "facts essential to justify opposition" may have existed but could not then be presented. Instead, plaintiff's moving papers focused on digging further into Ahumada's criminal background. Such discovery had no bearing on the dispositive issues, especially since plaintiff admitted he was unaware of Ahumada's criminal history when he received the threatening text message.
Plaintiff made no showing of the possible existence of facts demonstrating severe or extreme emotional distress. Therefore, he failed to satisfy the requirements of section 437c(h). "It is not sufficient under the statute merely to indicate further discovery or investigation is contemplated." (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 548; accord, Cooksey v. Alexakis, supra, 123 Cal.App.4th at pp. 254-257 and cases cited.) Under these circumstances, we cannot conclude the trial court abused its discretion by denying the continuance.
IV. Giumarra Farms Was Entitled to Summary Judgment
A. Applicable Law
Plaintiff's causes of action against Giumarra Farms alleged breach of contract, fraud in the inducement, "common count," and IIED. Each of these claims relied on an agency theory. Giumarra Farms was alleged to have acted by and through Ahumada as its employee and duly authorized agent.
"[T]he elements of a cause of action for breach of contract are (1) the existence of the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff." (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) Fraud in the inducement is a theory typically invoked to justify rescinding a contract. (See 1 Witkin, Summary of Cal. Law (11th ed. 2017) Contracts, § 298, pp. 317-318; see also Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 415.) In the pleadings, plaintiff used this term to mean fraudulent deceit for purposes of Civil Code sections 1709 and 1710. Regardless of how the second claim is labeled, plaintiff's theory of liability was based on the existence of a contract.
"A common count is not a specific cause of action, ... rather, it is a simplified form of pleading normally used to aver the existence of various forms of monetary indebtedness ...." (McBride v. Boughton (2004) 123 Cal.App.4th 379, 394.) "When a common count is used as an alternative way of seeking the same recovery demanded in a specific cause of action, and is based on the same facts, the common count ... must stand or fall with [the specific] cause of action." (Id. at pp. 394-395.) Plaintiff's third cause of action incorporates by reference earlier paragraphs of the complaint and alleges, "Giumarra Farms is indebted to [plaintiff] for the reasonable value of the goods delivered by [plaintiff] and unpaid for by Giumarra Farms, in the principal amount of $200,284.00." Therefore, this claim was also based on the existence of a contract.
A contract for the future sale of goods is governed by California's Uniform Commercial Code (UCC). (Cal. U. Com. Code, §§ 2102, 2105, 2106.) The statute of frauds, codified at UCC section 2201, states a contract for the sale of goods in excess of $500 "is not enforceable ... unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his or her authorized agent or broker." (Id., subd. (1).) However, an exception is made for goods "which have been received and accepted" by the buyer or a third party pursuant to the buyer's instructions. (Id., subd. (3)(c); accord, Dairyman's Cooperative Creamery Assn. v. Leipold (1973) 34 Cal.App.3d 184, 188.)
"An agent is one who represents another, called the principal, in dealings with third persons. Such representation is called agency." (Civ. Code, § 2295.) Under the equal dignities rule, an agent's authority to enter into an agreement subject to the statute of frauds "can only be given by an instrument in writing." (Id., § 2309.) An agreement made by an agent without such authorization is invalid. (Id., § 1624, subd. (a)(3).) "Thus, where the equal dignities rule applies, it requires formal, written ratification." (van't Rood v. County of Santa Clara (2003) 113 Cal.App.4th 549, 571.)
B. Defense Evidence
Giumarra Farms denied any contractual relationship with plaintiff or agency relationship with Ahumada. Its legal arguments relied on the statute of frauds and equal dignities rule. Evidence filed in support of the motion for summary judgment included declarations by Ahumada and John Giumarra, Jr., deposition testimony by plaintiff, and deposition testimony by Ahumada and John Giumarra, Jr. (the latter two transcripts were submitted with the reply papers). The evidence provided the following information.
The Giumarra family is connected to multiple legal entities involved in agribusiness. Giumarra Farms is a C corporation that owns and operates real estate holdings, including farmland. During all times relevant, John Giumarra, Jr., was the vice-president of Giumarra Farms. According to his testimony, Giumarra Farms is primarily involved "with the growing of citrus commodities."
John Giumarra, Jr. is/was also the president and chief executive officer of Giumarra Vineyards Corporation (Giumarra Vineyards). According to his testimony, Giumarra Vineyards "owns and operates real estate holdings including farmland and cold storage units. It is primarily involved in the growing, transportation, and selling of grapes and other agricultural commodities. As part of its business operations, Giumarra Vineyards provides cold storage of agricultural commodities, such as grapes, for itself and other business entities."
In 2013, Ahumada performed brokerage services for Rio Vista Ventures, LLC, which is based in Nogales, Arizona. This entity markets and sells produce, including grapes, and does business under the name "Giumarra of Nogales." The defense evidence included a copy of Ahumada's written independent contractor agreement with Rio Vista Ventures, LLC, executed in 2013.
Plaintiff is a farm labor contractor. He does not farm or otherwise produce agricultural goods himself; farmers pay him to supply field workers to pick crops, e.g., grapes. In October 2013, Ahumada contacted plaintiff by telephone and requested grapes, leading to the first of two oral contracts. Plaintiff had never met or dealt with Ahumada but was acquainted with his father, Miguel Ahumada, Sr. In defendant's words, plaintiff "departed from his usual business model and purchased the right to pick the last gleaning of grapes in two fields. He then sold the grapes for a disputed amount."
Pursuant to Ahumada's instructions, plaintiff delivered the first batch of grapes to Green Valley Cold Storage (Green Valley) in Arvin, California. Giumarra Farms does not own any cold storage facilities, nor is it affiliated with Green Valley. There are no writings to indicate the existence of a contract between plaintiff and Giumarra Farms with respect to the grapes delivered to Green Valley.
In November 2013, Ahumada contacted plaintiff again and said he had "a good client that wanted more grapes," which led to the second oral contract. For this job, Ahumada provided boxes for the grapes. Some of these boxes were labeled "Giumarra," but Giumarra Farms does not own any grape boxes. The boxes belonged to Giumarra Vineyards. Plaintiff paid a trucking company to deliver the grapes to a cold storage facility in Edison, California, which was also owned by Giumarra Vineyards.
During discovery, plaintiff produced shipping manifests reflecting the delivery of grapes to the Edison cold storage facility in November 2013. The name "Giumarra Farms, Inc." appears on the letterhead of some of these documents, while others bear the name "Giumarra Vineyards Corp." The documents identify Ahumada as the customer and many contain an illegible signature, which Giumarra Farms alleged was that of Ahumada. Some of the documents contain no signature but indicate the grapes were received by a Giumarra Vineyards or Giumarra Farms employee named Jorge Romero. The defense argued none of these records satisfied the statute of frauds because they were not signed by an authorized Giumarra Farms agent or broker. "They are merely an acknowledgement of received goods between Giumarra Vineyards and Ahumada."
According to the defense evidence, Ahumada acted on behalf of Rio Vista Ventures, LLC, for the ultimate purpose of selling grapes to another entity, GyS Marketing (the letters stand for "Giumarra [and] Salazar"). Based in Mexico, GyS Marketing is a produce sales company in which Rio Vista Ventures, LLC, has a 75 percent ownership interest. The remaining interest is held by Salazar, "a grower in Mexico."
The declaration of John Giumarra, Jr., further states: "In or about November 2013, GyS Marketing orally requested Giumarra Vineyards provide boxes, labels, and cold storage for grapes that would ultimately be transported to Hermosillo, Mexico, for sale on the Mexican market. Giumarra Farms was not involved in this transaction. During November 2013, Giumarra Vineyards provided the requested materials and cold storage."
In summary, as asserted in the separate statement of undisputed material facts (UMF), Giumarra Farms had no direct or indirect contact with plaintiff (UMF No. 3). "[N]either Giumarra Farms nor Giumarra Vineyards employed [Ahumada] [nor] gave him written authorization to act on their behalf[,] [nor held him out] to be their agent or employee to any person or business entity," nor ratified Ahumada's conduct. (UMF No. 6.) "Plaintiff admits he did not speak to Giumarra Farms concerning the oral contract[s] and did not confirm Ahumada['s] alleged agency either in writing or orally with Giumarra Farms." (UMF No. 17.)
"After demand for payment was made by Plaintiff's attorney on January 2, 2014, Giumarra Farms informed Plaintiff through his attorney on multiple occasions on and after January 2, 2014 that it was not a party to the contract[s]." (UMF No. 26.) "As asserted by Plaintiff, Ahumada ... sent three text messages on January 2, 2014 to Plaintiff explaining the contracts had been paid in full and that Plaintiff sent the invoices to the wrong company." (UMF No. 39.) On the same date, Ahumada sent faxes to plaintiff maintaining all money owed had been paid in full. The fax header indicated these transmissions came from "Giumarra of Nogales," the fictitious business name of Rio Vista Ventures, LLC.
To refute the IIED claim, Giumarra Farms relied on plaintiff's deposition testimony to show the elements of outrageous conduct and severe emotional distress could not be proven.
C. Asserted Grounds for Continuance
As previously noted, the September 2, 2016, declaration of plaintiff's counsel begins with these assertions: "2. The depositions of John Giumarra, Jr. (August 31, 2016), [Ahumada], (August 22, 2016), and Miguel Ahumada, Sr. (August 17, 2016) necessitate Amendment of the complaint to add additional Giumarra entities as defendants. [¶] 3. Additional discovery and depositions will need to be taken to fully answer both summary judgment motions in this case."
In paragraph 4, counsel alleges Ahumada "represented himself to [plaintiff] and others as a Giumarra salesman." Paragraph 5 states Ahumada "testified that he worked for another Giumarra entity named Rio Vista Ventures, LLC in his dealings with [plaintiff]." Paragraphs 6 and 7 pertain to Ahumada's criminal history. Paragraphs 8 and 9 explain plaintiff is a labor contractor and refer to the partial payment made on the first oral contract.
Paragraphs 10 through 13 concern the second contract, including delivery of grapes to the cold storage facility in Edison and the shipping manifests confirming receipt of the same. In paragraph 10, counsel alleges Ahumada "directed [plaintiff] to pick up labeled Giumarra boxes at the Edison facility. According to [Ahumada] the boxes belonged to Giumarra Farms, Corp."
No supporting evidence is provided for either statement. Ahumada's deposition testimony indicated the boxes belonged to Giumarra Vineyards and were obtained by him from Giumarra Vineyards on behalf of GyS Marketing. Since there is no evidence in the record of a "Giumarra Farms Corp.," reference to this nonparty entity appears to be a typographical error.
Paragraph 14 states, "The deposition of John Giumarra, Jr. [w]as taken yesterday August 31, 2016 the information obtained will necessitate amendment of the complaint to add multiple defendants that are Giumarra entities." Paragraph 15 states, "The deposition of Giumarra Farms, Inc and Giumarra Vineyards Corporation will lead to admissible trial evidence." Paragraphs 16 and 17 recite information concerning Ahumada's alleged cash payment of $98,000 on the first contract.
Paragraphs 18 through 21 concern the allegation of terrorist threats and propose further investigation into Ahumada's criminal background. Paragraph 22 states, "At the minimum the depositions of Giumarra's accountant Ken Boyles and the local Giumarra Corporation sales personnel need to be taken." Paragraphs 23 through 26 address the refusal by John Giumarra, Jr., to answer questions regarding Ahumada's alleged terrorist threats.
These statements leave open the question of who the referenced parties are and why it is necessary to take their depositions. The record contains no evidence of an entity named "Giumarra Corporation." John Giumarra, Jr., did testify that Ken Boyles is the accountant for Giumarra Farms, but the declaration does not convey this information.
Paragraphs 27, 28, and 30 discuss the anticipated service of bank subpoenas to obtain financial records of Giumarra Farms and Giumarra Vineyards. Counsel explains such discovery "relates to Giumarra entities' 'cash in the field' program and four-time felon [Ahumada's] role as a Giumarra contract enforcer." Paragraph 29 states, "The aforementioned discovery depositions and additional discovery is essential to fully answering the two summary judgment motions and for trial of this action."
On September 14, 2016, plaintiff supplemented his earlier continuance request with an ex parte application. The application discusses the August 2016 depositions of Ahumada, John Giumarra, Jr., and Miguel Ahumada, Sr.:
"During these depositions new evidence came to light which requires that this court continues [sic] the hearing date for the defendants' Motion for Summary Judgment. The depositions revealed new witnesses to depose and new Giumarra entities to be named as defendants in this case through an amended complaint. The witnesses to be deposed are: [¶] 1. Sal Giumarra [¶] 2. Randy Giumarra [¶] 3. Jorge Romero [¶] 4. Bank Institutions' custodian of records [¶] 5. Veloria Trucking (rescheduled) [¶] 6. Caliente Farms foremen[.] [¶] Entities to be added as defendants in amended complaint: [¶] 1. Rio Vista Ventures, LLC [¶] 2. Giumarra of Nogales [¶] 3. GYS[.]"
An accompanying declaration by plaintiff's counsel attempts to further explain the proposed additional discovery:
"3. As a result of discovery taken it will be necessary to take multiple depositions of witnesses for Job No. 2, Giumarra entities' officers and employees, and hire an expert in accounting and financial records.
"4. Deposition of Ken Boyles, accountant for Giumarra entities at the Edison facility. Deposition of the custodian of records of the financial banking institutions for Giumarra entities (Bank of America and Chase). Previous bank subpoenas were not served on banking institutions. Nevertheless, Giumarra's counsel filed motions to quash set for September 29, 2016.
"5. Depositions of witnesses on Job No. 2. Grapes [obtained by plaintiff] from Caliente Farms were field-inspected by the Ahumadas, packed in Giumarra labeled boxes and transported to Giumarra's cold storage facility at Edison. Giumarra entities' (Kern County) Jorge Romero issued receipts to [plaintiff's] trucking service verifying the quantity and quality of the boxes delivered. These depositions are being scheduled for the week of October 6, 2016 at 1 hr. intervals: [¶] 1. Jorge Romero [¶] 2. Three Caliente Farms foremen and supervisors [¶] 3. Veloria Trucking (rescheduled)[.]
"6. Defendants Giumarra Entities (Kern County) is setting the videotaped deposition of Iris Rendon for the week of October 6, 2016 and we are accepting service for Iris Rendon.
"7. Depositions of witnesses from John Giumarra Jr.'s August 31, 2016 videotaped deposition. Certified transcript will be available Wednesday, September 14, 2016: [¶] 1. Sal Giumarra [¶] 2. Randy Giumarra[.] [¶] Rio Vista Ventures, LLC of Nogales depositions will be set after complaint is amended in order to add parties as defendants in this case."
There is no explanation of who Randy and Sal Giumarra are or why plaintiff wanted to depose them. As with most of plaintiff's proposed discovery, the trial court was left to guess at how such discovery might lead to facts essential to oppose the motion for summary judgment. According to John Giumarra, Jr.'s deposition testimony, Randy Giumarra is a sales executive for Giumarra Vineyards. Sal Giumarra is the president of Giumarra Farms.
D. Analysis
Most of the information contained in plaintiff's declarations had already been set forth in defendants' motions for summary judgment. The primary exceptions are (1) information concerning Ahumada's criminal background, (2) complaints regarding John Giumarra, Jr.'s refusal to answer deposition questions about Ahumada's text messages, and (3) the anticipated bank subpoenas. These three categories of discovery had no apparent relevance to Giumarra Farms' statute of frauds defense or the absence of a written agency agreement between Giumarra Farms and Ahumada.
In opposing the continuance request, Giumarra Farms showed the existence of business entities discussed in the declarations did not, as counsel had implied, constitute "new evidence" only recently "revealed" in the depositions of Ahumada and John Giumarra, Jr. In discovery responses served on plaintiff in January 2015, approximately 19 months earlier, Giumarra Farms repeatedly stated Ahumada was "an independent sales broker, who had contracted with GyS Marketing, a partnership doing business in [Mexico], to obtain grapes on its behalf." In an accompanying production of documents, Giumarra Farms provided plaintiff with copies of Ahumada's independent contractor agreements with Rio Vista Ventures, LLC, which were executed in 2013.
Defendant also pointed to items previously attached as exhibits to the original complaint, namely faxed documents sent by Ahumada to plaintiff in January 2014 bearing the name "Giumarra of Nogales," thus showing plaintiff's earlier awareness of that entity. The operative fifth amended complaint references those faxes, erroneously referring to the name therein as "Giumarra Farms of Nogales." Following plaintiff's deposition of March 31, 2016, he produced shipping manifests bearing the name "Giumarra Vineyards Corp.," thus demonstrating his prior knowledge of that company as well.
Setting aside all earlier disclosures of nonparty entities, defendant's motion for summary judgment not only identified Giumarra Vineyards, Rio Vista Ventures, LLC, and GyS Marketing, but also explained each company's involvement in the subject dispute. The information is ascertainable from a cursory review of the moving papers. For example, Giumarra Vineyards is referenced in UMF Nos. 2, 3, and 6. UMF No. 4 states, "During the Summer and Fall of 2013, [Ahumada] performed brokerage services for Rio Vista Ventures LLC[.]"
There was a 10-week interval between the filing and service of Giumarra Farms' motion for summary judgment on June 23, 2016, and plaintiff's continuance request of September 2, 2016. Even if plaintiff had waited two weeks to read defendant's motion, he still had two months in which to (1) conduct discovery regarding Giumarra Vineyards, Rio Vista Ventures, LLC, and/or GyS Marketing, (2) move to amend the pleadings, and/or (3) request a continuance of the summary judgment proceedings. Therefore, substantial evidence supports the trial court's implied finding that plaintiff was dilatory and less than forthright in seeking relief under section 437c(h).
Giumarra Farms further opposed the continuance on grounds the facts proposed to be found through discovery were "neither essential nor relevant" to the issues on summary judgment. We agree. Plaintiff never explained how additional discovery might enable him to overcome the absence of a written contract, the absence of a documented agency relationship between Giumarra Farms and Ahumada, or show exceptions to either of those defenses. Plaintiff focused on amending the complaint to add new parties, which ironically bolstered the position defendants had asserted throughout the litigation: he sued the wrong company.
To reiterate, declarations in support of a section 437c(h) continuance request "should show the following: (1) 'Facts establishing a likelihood that controverting evidence may exist and why the information sought is essential to opposing the motion'; (2) 'The specific reasons why such evidence cannot be presented at the present time'; (3) 'An estimate of the time necessary to obtain such evidence'; and (4) 'The specific steps or procedures the opposing party intends to utilize to obtain such evidence.'" (Johnson v. Alameda County Medical Center (2012) 205 Cal.App.4th 521, 532, quoting Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2011) ¶ 10:207.15, p. 10-83 (rev. #1, 2011).) Plaintiff's declarations did not satisfy these requirements. It is not enough to aver "'discovery is reasonably necessary to determine who, if not the presently named individuals, is responsible'" for the wrongs alleged in the pleadings. (Johnson, at p. 532.)
Giumarra Farms satisfied its evidentiary burden on all four causes of action. In light of the applicable law and considering all relevant circumstances, the trial court did not abuse its discretion by refusing to continue the summary judgment hearing pursuant to section 437c(h). As plaintiff has not affirmatively demonstrated error, his claims fail.
DISPOSITION
The judgments are affirmed. Defendants are entitled to recover their costs on appeal.
/s/_________
PEÑA, J. WE CONCUR: /s/_________
DETJEN, Acting P.J. /s/_________
SNAUFFER, J.