Judge: Colin Leis, Case: 21GDCV00277, Date: 2022-10-20 Tentative Ruling

Case Number: 21GDCV00277    Hearing Date: October 20, 2022    Dept: 3

Superior Court of California

County of Los Angeles

Department 3

MOVING PARTY:                     Defendant Bowden Development, Inc.

RESPONDING PARTY:         Plaintiff Christopher Chung

The Court considered the moving, opposition, and reply papers filed in connection with Defendant’s motion for summary judgment, or in the alternative, for summary adjudication.

BACKGROUND

This case arises out of the sale of a home by Defendant Bowden Development Inc. (BDI) to Plaintiff Christopher Chung.  Separate Statement of Facts (SSOF) Nos. 3-5. Plaintiff claims that at the time of the sale, Defendant knew that the home’s prior owner, James Reader, died at the house, but that Defendant intentionally withheld that information from Plaintiff.  SSOF No. 5. Plaintiff claims he would not have purchased the home had he known the prior owner died at the house. SSOF No. 7. The Complaint asserts three causes of action for (1) violation of Cal. Civ. Code § 1710.2, (2) intentional misrepresentation, and (3) negligent misrepresentation.  Plaintiff seeks general damages, special damages and punitive damages, among other relief.

This hearing is on Defendant’s motion for summary judgment, or in the alternative, for summary adjudication. Plaintiff opposes the motion, but in the alternative, seeks to continue the motion pursuant to Code of Civil Procedure section 437c, subdivision (h). The Court finds sufficient bases to continue Defendant’s motion to allow Plaintiff time to conduct further discovery.

LEGAL STANDARD

Code of Civil Procedure 437c, subdivision (h) states that “[i]f 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 drafters’ inclusion of the italicized words ‘may’ and ‘shall’ leaves little room for doubt that such continuances are to be liberally granted.” (Bahl v. Bank of America (2001) 89 Cal.App.4^th 389, 395; see also Frazee v. Seely (2002) 95 Cal.App.4^th 627, 634 (“[T]he language stating the continuance ‘shall’ be granted upon such a showing, leaves little room for doubt that such continuances are to be liberally granted.” (citations and quotations omitted).) 

To make the required showing for a continuance, a movant must submit an affidavit establishing (1) the facts to be obtained through additional discovery are essential to opposing the motion, (2) there is reason to believe such facts may exist and (3) the reasons additional time is needed to obtain these facts. (Frazee, 95 Cal.App.4^th 633.)

DISCUSSION

The crux of Defendant’s motion is Defendant has no actual knowledge that Mr. Reader died at the house, which Defendant contends is an essential element of all of Plaintiff’s claims. In opposition, Plaintiff argues that Defendant had actual knowledge because Defendant received and reviewed an escrow file which contained Mr. Reader’s death certificate and the certificate shows Mr. Reader died at home. In reply, Defendant contends it did not receive the full escrow file but only a “buyer’s copy” which it claims did not contain the death certificate.

Plaintiff seeks a continuance to depose (1) the escrow agent (Alexis Ostensen) to determine whether the copy of the escrow file received by Defendant contained the death certificate, (2) an employee of Defendant (Traci French) to determine the contents of the escrow file sent to Defendants and whether she reviewed the file, and (3) a neighbor (Yolanda Cooper) who purportedly has personal knowledge of whether Defendant was told that Mr. Reader died at the house.

Based on the foregoing, Plaintiff has presented sufficient evidence to show there is reason to believe facts essential to oppose Defendant’s motion may exist, and those facts may be obtained through the three depositions. The only issue raised by Defendant in opposition to the motion to continue is whether Plaintiff exercised diligence in seeking to depose these individuals. A party’s lack of diligence in seeking discovery is a valid ground for denying the party’s continuance request under section 437c, subdivision (h). Cooksey v. Alexakis (2004) 123 Cal.App.4^th 246, 251, 255-257 (“A good faith showing that further discovery is needed to oppose summary judgment requires some justification for why such discovery could not have been completed sooner.”).

Here, Plaintiff has presented sufficient facts to show he was diligent. First, Plaintiff’s counsel avers that shortly after Defendant testified that Defendant did not receive the death certificate (on September 21, 2022), Plaintiff’s counsel subpoenaed the deposition of the escrow agent (on September 29, 2022). Feazell Decl. ¶¶ 7-8. Defendant argues Plaintiff knew the identity of the escrow agent much earlier (in March 2022) but that alone would not have alerted Plaintiff to the agent’s significance in potentially rebutting Defendant’s claim that the copy of the escrow file that Defendant received did not contain a death certificate. Second, as to Ms. French, Plaintiff’s counsel attests she was not identified by Defendant in form interrogatories, and in any event, Plaintiff needs to take her deposition to probe the facts she avers to in her declaration.  In her declaration, Ms. French attests she “reviewed the escrow file” and “[a]t no point in 2018 did she receive a copy of [the] death certificate.” French Decl. ¶¶ 4,6.   Defendant claims Plaintiff knew of the existence of Ms. French and had in fact posed discovery seeking admissions as to Ms. French. However, Defendant has not made a showing Plaintiff knew Ms. French would aver that the death certificate was not in the escrow file, as she did in her declaration. Third, Plaintiff’s counsel attests that he only recently identified another witness, a neighbor (Yolanda Cooper) who may have information that Defendant was advised Mr. Reader died at the home. Feazell Decl. ¶ 10. In its reply, Defendant’s counsel notes Plaintiff took Ms. Cooper’s deposition off calendar shortly after filing his opposition stating his need for the deposition. Defendant has not submitted the email notifying of the cancellation of the deposition, and the Court does not have the full context of why the deposition was taken off calendar. In any event, even if Plaintiff no longer intends to take Ms. Cooper’s deposition, Plaintiff has shown the need for two other depositions.

For these reasons, the Court grants Plaintiff’s motion for continuance.

CONCLUSION

Based on the foregoing, the Court continues Defendant’s motion for summary judgment, or in the alternative for summary adjudication, to [date to be discussed at the October 20 hearing] to allow Plaintiff time to take additional discovery to oppose the motion. Plaintiff is ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED: October 20, 2022                                                      ___________________________

                                                                              Colin Leis

Judge of the Superior Court