Judge: Michael J. Strickroth, Case: 2022-01278539, Date: 2023-08-21 Tentative Ruling
Motion for Summary Judgment
Defendant Orange County Classical Academy’s Motion for Summary Judgment is CONTINUED to November 6, 2023, at 1:45 p.m. in Department C15.
This is an indemnification case. Plaintiff Ostraka was the landlord of real property located at 4100 E. Walnut Avenue, Orange, CA 92869 (the “Property”). Defendant Orange County Classical Academy (“OCCA”) was the tenant of the Property under a written lease with Plaintiff entered into on 05-12-2020 (the “Lease”). The Lease contained an indemnification clause which required OCCA to indemnify Ostraka from any losses, claims or damages caused by the misuse of the Property. Ostraka hired a general contractor Service First to renovate the Property. Service First was required to obtain approval from Plaintiff for the specific work. After the Lease was entered into, OCCA instructed Service First to perform other works on the Property which were allegedly not authorized by Plaintiff.
Service First has demanded payment from Ostraka for the unauthorized work and on or about 12-03-2021, filed a lawsuit against Ostraka in Orange County Superior Court, Case No. 30-2021-01238668-CU-BC-CJC. On or about 04-06-2022, Service First dismissed the lawsuit.
On 08-31-2022, Plaintiff filed this lawsuit seeking indemnification from OCCA for the claims made against it by Service First. The Complaint alleges the following causes of action: 1) indemnification, and 2) declaratory relief.
Plaintiff Ostraka requests a continuance pursuant to Code of Civil Procedure § 437c(h) so that it may obtain discovery necessary to oppose this MSJ.
CCP § 437c(h) provides, in relevant part: “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, 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.”
“An opposing party's declaration in support of a motion to continue the summary judgment hearing 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; see Combs v. Skyriver Communications, Inc. (2008) 159 Cal.App.4th 1242, 1270.
Pertinent portions of the declaration of William Carlsen are as follows:
--On 10-17-2022 Plaintiff served a notice of deposition on OCCA. OCCA objected to the deposition notice and stated that “the dispute between Ostraka and Service First are irrelevant to this lawsuit.”
--On 02-24-2023, Jeffrey Bark, M.D. was deposed as OCCA’s PMK.
--After OCCA’s MSJ was filed, the declaration of Mark Bucher, an employee of Service First, testified concerning the subject matter of the Service First lawsuit and the dispute between Service First and Ostraka, which OCCA said was irrelevant to this case.
--After reviewing the MSJ, Plaintiff issued a deposition subpoena for Mr. Bucher. His deposition has been re-noticed for 08-15-2023.
--In documents produced by Dr. Bark is a detailed list of questions for OCCA’s former CEO Gary Davis who admitted that OCCA authorized Service First to perform unauthorized work.
--Mr. Davis’ deposition has been noticed for September 7, 2023.
Carlsen’s declaration references certain exhibits which relate to Plaintiff’s request for a continuance. These exhibits were not lodged with the Court. However, the Court finds Carlsen’s declaration is signed under penalty of perjury and indicates steps have been taken to ensure that the discovery necessary to oppose this MSJ is obtained. The depositions of Mr. Bucher and Mr. Davis were timely noticed after Plaintiff received the MSJ and there has not been any significant delay in obtaining this discovery. These depositions relate to the dispute between Service First and Plaintiff, which was raised as an issue in this MSJ. Thus, Carlson’s declaration sufficiently demonstrates a need for a continuance under CCP 437c(h). Moreover, trial is currently scheduled for January 8, 2024, therefore, there is no prejudice to the Defendant in allowing a brief continuance.
Accordingly, the hearing on the motion is CONTINUED to November 6, 2023, at 1:45 p.m. in Department C15. Opposition papers are due 14 court days before the hearing. Reply papers are due 5 court days before the hearing.
Plaintiff is advised to ensure all Exhibits are timely filed with the Court prior to the next hearing or they may not be considered.
Moving party to give notice.