Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. GIC869509, Yuri Hoffman, Judge.
O'Rourke, J.
Plaintiff Elizabeth Lewis appeals from a summary judgment in favor of defendants Pacific Bell Directory (Pacific Bell) and Natalie Malcolm on Lewis's complaint alleging causes of action for cancellation of a written instrument, fraud, and unfair business practices under the Unfair Competition Law (UCL). Lewis's sole contention on appeal is that the trial court abused its discretion in denying her request to continue defendants' summary judgment motion by reason of her inability to conduct certain discovery. We affirm the judgment.
PROCEDURAL BACKGROUND
In July 2006, Lewis, an attorney, sued AT&T Corporation and SBC Telecommunications, Inc., asserting various causes of action based on allegations that her signature had been forged on a contract for Yellow Pages advertising. Shortly thereafter, Lewis filed a first amended complaint identifying additional defendants, including Malcolm, who Lewis alleged was an agent of SBC Telecommunications, Inc. and/or SBC Telecom, Inc. (SBC) acting within the scope of her agency. In part, Lewis alleged SBC knew or should have known that Malcolm forged or caused to be affixed the names of customers to the advertising contracts without their consent. The parties then stipulated that Lewis would file a second amended complaint identifying the sole defendants as Malcolm and Pacific Bell Directory. That pleading was filed in December 2006.
Following orders sustaining defendants' demurrer, Lewis filed a third amended complaint setting forth causes of action for cancellation of written instrument, actual fraud and violation of the UCL, attaching the allegedly forged contract. After asserting an unsuccessful demurrer to that pleading, defendants answered in October 2007.
Several months later, defendants moved to reclassify the case to limited civil jurisdiction on grounds Lewis's case, which involved a contract with a total price of $5100, could not meet the $25,000 minimum jurisdictional limit as revealed by Lewis's discovery responses. In early February 2008, pursuant to an apparent stipulation, the trial court shortened time for defendants' motion for summary judgment and/or adjudication of issues so that the motion was to be filed and served no less than 28 calendar days before the hearing date.
The trial court denied defendants' motion to reclassify the case in May 2008, while defendants' motion for summary judgment was pending.
In the meantime, defendants applied for an order continuing the trial, motion and discovery cutoff dates so as to complete a mediation the parties had commenced on February 27, 2008, in an attempt to settle the case. In support of the application, defendant's counsel averred in a declaration that at about the time of the mediation, Lewis's counsel had "realized that he needed to complete the deposition of [Malcolm] before [Lewis] could adequately consider Defendants' settlement proposal" and "[a]ccordingly, the parties agreed to conclude that mediation session, complete [Malcolm's] deposition and then reconvene the mediation." Counsel stated: "The parties have agreed to postpone remaining discovery and the hearing on Defendants' for [sic] summary judgment until after completion of the second session of mediation." Lewis stipulated to continuing the dates, and the trial court granted defendants' request, continuing the trial date to July 25, 2008.
In April 2008, defendants moved for summary judgment or alternatively summary adjudication of issues, arguing none of Lewis's causes of action had any merit in part based on Lewis's deposition admissions that she had no evidence defendants committed the forgery. Lewis opposed defendant's summary judgment motion. She asserted that summary judgment was "premature if not improper" because she needed to take depositions of Malcolm, Pacific Bell representatives and employees Jaime Marquez and Jennifer Navarette, as well as Rochelle Rand, who, according to Lewis, also contended her name was forged on a Yellow Pages advertising contract. Lewis argued the deposition testimony of these witnesses would "likely lead to facts essential to oppose the motion." Citing Code of Civil Procedure section 437c, subdivisions (h) and (i), Lewis argued that the court should deny the motion because she lacked specific facts to oppose it. In a supporting declaration, Lewis's counsel stated the parties would have noticed the depositions earlier but decided to hold off to save costs, in the hope the matter would settle in mediation, and that the witnesses' testimony would "likely lead to facts essential to oppose the Defendant's motion." On that basis, counsel requested that the court deny the motion.
All statutory references are to the Code of Civil Procedure unless otherwise indicated.
Defendants filed their reply papers on May 16, 2008, pointing out that Lewis had not filed a separate statement or identified any material disputed fact in opposition to their motion. They argued Lewis sought only to delay the case, and further, that she had had ample opportunity — two years — to take necessary depositions but waited until May 14, 2008 to serve her first deposition notices. Defendants argued Lewis had no explanation or justification for her delay; that her desire to wait to conduct the discovery after the mediation was insufficient in view of her obligation to exercise reasonable diligence in prosecuting her case.
After hearing argument on the matter, the trial court granted summary judgment in defendants' favor. It ruled defendants' facts and evidence had shifted the summary judgment burden to Lewis, who did not present sufficient evidence to meet her burden or submit a separate statement in opposition, which it ruled under section 437c, subdivision (b)(3) was reason enough to grant the motion. The court denied Lewis's request for a continuance to conduct the witness depositions, reasoning: "Plaintiff filed this case on [July 21, 2006]. She has provided no reasonable justification for failing to depose all necessary witnesses within the past almost two years."
Section 437c, subdivision (b)(3) provides: "The opposition papers shall include a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating whether the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts that the opposing party contends are disputed. Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence. Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court's discretion, for granting the motion."
Following entry of judgment in defendants' favor, Lewis filed this appeal.
DISCUSSION
Lewis contends she had a " 'virtually mandat[ory]' " right to a continuance because she made the requisite showing, via declarations, "stating what evidence was sought, and from whom." She acknowledges that to be entitled to a continuance she was required to " 'show that [her] proposed discovery would have led to facts essential to justify opposition.' "
Lewis further contends the trial court abused its discretion in denying her continuance request, which she maintains must be exercised liberally in favor of granting the continuance. She cites Frazee v. Seely (2002) 95 Cal.App.4th 627, 634, for the proposition that "[t]he interests at stake are too high to sanction the denial of a continuance without good reason."
Finally, Lewis contends the court failed to give "due consideration" to all relevant factors, including the length of time the case was pending, the length of time she had to oppose the motion, the proximity of the trial date, whether the continuance motion could have been made earlier, prior continuances for this purpose, and whether the evidence sought was essential to the issue to be adjudicated. She argues: "In the instant case, as shown in the declarations..., the additional evidence, if available, was clearly and unequivocally directed to the issues framed by the pleadings, and would have tended to show a pattern and practice on the part of Defendants of forging customers' names to contracts in order to gain commissions and advertising revenues, which is patently and obviously an unfair business practice from which Defendants have derived substantial economic benefit."
I.
Section 437c, subdivision (h) provides: "If it appears from the affidavits submitted in opposition to a motion for summary judgment... that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make any other order as may be just." It is not sufficient that a declaration in support of such a continuance indicate further discovery or investigation is contemplated; it must show " 'facts essential to justify opposition may exist.' " (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 548; see also New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 215; Scott v. CIBA Vision Corp. (1995) 38 Cal.App.4th 307, 325-326.) Thus, the plaintiff must show "that the... discovery requested could reasonably lead to evidence necessary to refute" the defendants' evidence. (Scott v. CIBA Vision Corp., at p. 326.) If the plaintiff does not make the required showing by affidavit, a continuance is not mandatory. (Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 393; Scott v. CIBA Vision Corp., at pp. 315, 326; Mahoney v. Southland Mental Health Associates Medical Group (1990) 223 Cal.App.3d 167, 170.)
When a continuance is not mandatory because of the plaintiff's failure to meet the requirements of section 437c, subdivision (h), the court determines whether the party requesting a continuance has nonetheless established good cause for such a request. (See Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 254; Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 716.) We review the court's ruling on that question for abuse of discretion. (See Cooksey, at p. 254; Lerma, at p. 716; Scott v. CIBA Vision Corp., supra, 38 Cal.App.4th at p. 326; Mahoney v. Southland Mental Health Associates Medical Group, supra,223 Cal.App.3d at p. 170.)
II.
The background and substance of Lewis's request for a continuance was set out in her counsel's declaration as follows: "I was recently contacted by an individual who contends that her name was forged on three separate advertising proofs by someone at Pacific Bell Directory Yellow Pages. That individual is Rochelle A. Rand, who had been in negotiations with Pacific Bell Yellow Pages for an advertising contract similar to that of the Plaintiff. I have prepared a draft of a declaration for Ms. Rand to review, make changes, and sign once in final format, however, as of this date she has not yet returned it, nor given me sufficient input in order to put it in final form. Therefore, Plaintiff will need to schedule her deposition and have a deposition subpoena served upon her for this purpose. It is anticipated that Ms. Rand's testimony will provide information about a pattern and practice on the part of the Defendants of forging customers' names on documentation in order to gain commissions and advertising revenue. This will be further evidence of the fraudulent conduct of the Defendants, which is patently and obviously an 'unfair business practice' from which Defendants have derived substantial benefit, monetary or otherwise. This would also point to evidence of a pattern and practice and/or modus operandi on Defendants' part, vis-à-vis their fraudulent conduct, not only toward Plaintiff, but with respect to other customers of Defendants. I expect to have these depositions completed by the second week of June, 2008. [¶]... [¶]
"The parties would have noticed [the depositions of Malcolm, Marquez, Navarette and Rand] earlier, however, the parties recently scheduled a second session of a mediation hearing in connection with this case, and it was decided to hold off on taking these depositions in order to save the costs, in the hope that the matter would settle in mediation. Unfortunately, the matter did not settle at the second session of the Mediation Hearing, which was held on the morning of May 5, 2008. I expect to use the deposition testimony of these witnesses, which will likely lead to facts essential to oppose Defendant's motion. [¶]... In the present case, Plaintiff has not obtained the deposition testimony of the witnesses identified above, and because of it she lacks specific facts to oppose the motion."
Relying on the inadequacy of counsel's showing, the court denied Lewis's request. Applying settled rules governing appellate review, this order is presumed to be correct, with all intendments being indulged on matters as to which the record is silent and the burden being on Lewis to make an affirmative showing of error. (Corenevsky v. Superior Court (1984) 36 Cal.3d 307, 321; e.g., Jie v. Liang Tai Knitwear Co. (2001) 89 Cal.App.4th 654, 666.)
Lewis's counsel's declaration lacked the information necessary to mandate a continuance under section 437c, subdivision (h). Specifically, though counsel suggested the type of information he would elicit from witness Rand, he "provided no explanation as to how the outstanding discovery was relevant to issues raised by [defendants'] motion." (Cooksey v. Alexakis, supra, 123 Cal.App.4th at p. 254.) Nor did the declaration of Lewis herself meet this standard. Lewis's declaration did not in any manner address the reasons for her inability to conduct discovery or the need for any requested continuance. Based on these deficiencies alone, the court had discretion to deny Lewis's request for a continuance. (Id. at p. 255, citing Waisbren v. Peppercorn Productions, Inc. (1995) 41 Cal.App.4th 246, 263, disapproved on other grounds in San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 315.)
Further, as we explain, Lewis has not shown its order was an abuse of discretion. In view of the absence of any showing as to what rebutting facts (as opposed to generic "anticipated... information" about Pacific Bell's alleged practices) would be uncovered by the proposed discovery, the court did not abuse its discretion in deciding, implicitly, that these depositions would not provide "facts essential to justify opposition" to defendant's motion with respect to Lewis's causes of action. (§ 437c, subd. (h).)
Moreover, counsel gave no justifiable reason as to why the witness's depositions were not taken in time to present their testimony in opposition to defendant's motion. (See Cooksey v. Alexakis, supra, 123 Cal.App.4th at pp. 256-257; A&B Painting and Drywall, Inc. v. Superior Court (1994) 25 Cal.App.4th 349, 356-357 [continuance for purposes of taking depositions not warranted when declaration did not "explain what efforts were made to take the necessary depositions or why they could not have been taken earlier"]; see also Desaigoudar v. Meyercord (2003) 108 Cal.App.4th 173, 191 [there was "no indication in the record that plaintiffs ever attempted, either formally or informally, to obtain [the necessary] information"]; Wachs v. Curry (1993) 13 Cal.App.4th 616, 624 [no showing why opponent's evidence "could not have been obtained in the three months between... filing of the motion for summary judgment and the hearing"]; contra Bahl v. Bank of America, supra, 89 Cal.App.4th at p. 398 ["[w]e question whether diligence alone should make or break a continuance request under... section 437c, subdivision (h). The issue of discovery diligence is not mentioned in [the statute], which raises obvious doubts about its relevance"]; Frazee v. Seely, supra, 95 Cal.App.4th at p. 635.)
We agree with the reasoning of the court in Cooksey v. Alexakis, which concluded, in keeping with a majority of courts addressing the matter, that lack of diligence may be a ground for denying a request for a continuance of a summary judgment motion hearing: "Although [section 437c, subdivision (h)] does not expressly mention diligence, it does require a party seeking a continuance to declare why 'facts essential to justify opposition... cannot, for reasons stated, then be presented' [citation], and courts have long required such declarations to be made in good faith. [Citations.] There must be a justifiable reason why the essential facts cannot be presented. An inappropriate delay in seeking to obtain the facts may not be a valid reason for why the facts cannot then be presented. The statute itself authorizes the imposition of sanctions for declarations presented in bad faith or solely for purposes of delay. [Citation.] A good faith showing that further discovery is needed to oppose summary judgment requires some justification of why such discovery could not have been completed sooner." (Cooksey v. Alexakis, supra, 123 Cal.App.4th at p. 257.)
The record shows that as of December 2006, Lewis's operative complaint identified Pacific Bell and Malcolm as defendants. Defendants' summary judgment motion was filed well over a year later in April 2008, and Lewis provided no reason why depositions of both Malcolm or the Pacific Bell witnesses could not have been taken in anticipation of that motion. Though counsel stated he was "recently" contacted by witness Rand, who asserted similar claims, he provided no facts demonstrating when she contacted him, or why he could not have scheduled that witness's deposition before Lewis's summary judgment opposition was due. Lewis also asserts that the parties intended to give the mediation process "high priority," and stipulated to less than the statutory briefing schedule. However, this assertion as to the parties' priorities was not made in her counsel's declaration and was not before the trial court. We conclude in any event that a party's mere desire to save costs, as set forth in Lewis's counsel's declaration, does not constitute reasonable diligence. As a consequence, we cannot infer such diligence on this record.
Finally, we cannot say the trial court ignored relevant factors in exercising its discretion. It is for Lewis to demonstrate how the trial court's ruling was an abuse of discretion. The court observed how long the case had been pending, and it made implicit findings as stated above. In short, Lewis did not make a proper showing of good cause to justify a continuance. On this record, the trial court's order was not an abuse of discretion.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J., IRION, J.