Judge: Michael Small, Case: BC701615, Date: 2024-05-03 Tentative Ruling

Case Number: BC701615    Hearing Date: May 3, 2024    Dept: 57

The Court’s tentative decision is to continue the hearing on the motion for summary judgment or summary adjudication filed by Defendants Joseph Barrett and the Barrett Law Firm to May 23, 2024 at 8:30 so that their motion can be considered alongside the motion for summary judgment and summary adjudication of co-Defendant Todd Wakefield.  In the Court’s estimation, the issues presented in the Barrett Defendants and Wakefield motions are overlapping.

This brief continuance that the Court has determined is warranted is not to be confused with the longer continuance that the Plaintiff has requested in his opposition to the Barrett Defendants’ motion so that he can  take the deposition of the incarcerated Phillip Layfield.  That request is denied. 

Code of Civil Procedure Section 437c(h) provides that the trial court “shall” deny a motion for summary judgment or continue the hearing on the motion “[i]f it appears from the affidavits submitted in opposition to [the motion] that facts essential to justify opposition may exist, but cannot, for reasons stated, be presented to the court . . . .”   If the affidavit of counsel for the party opposing the motion makes a “good faith showing” of the existence of such facts, then a continuance of the hearing on the motion is “virtually mandated.”  (Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 395, 398-399; see also Johnson v. Alameda County Medical Center (2012) 205 Cal.App.4th 521, 532.) That good faith showing is made if counsel’s affidavit demonstrates the following:  the facts that are sought to be obtained are essential for the opposition; there is reason to believe that those facts exist; the reason why the nonmoving party needs additional time to obtain the facts in question; and the reason why, through the exercise of reasonable diligence, the nonmoving party could not have completed the discovery necessary to obtain the facts prior to the hearing on the motion.  (Braganza v. Albertson’s LLC  (2022) 67 Cal.App.5th 144, 153, 156; Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 254-257.) 

The declaration of Plaintiff’s counsel Yana Henriks fails to meet this standard for a good faith showing of the need for a continuance under Section 437c(h).  In particular, her declaration does not state what evidence bearing on the Barrett Defendants’ motion of which Layfield may have knowledge, explain why Plaintiff needs additional time to take Layfield’s deposition, and why, through the exercise of reasonable diligence, the deposition could not have been taken sooner.  Layfield is the central figure in the events that led to Plaintiff’s suit against the Barrett Defendants and Wakefield.  But just because he is a central figure does not automatically mean that he has evidence of the Barrett Defendants’ liability.   Henriks’s declaration needed to explain what evidence Layfield may have. Her barebones declaration presumes that he has that evidence.  Further, just because Layfield is incarcerated does not explain why Plaintiff failed to depose him earlier through the exercise of reasonable diligence.

Even when an affidavit submitted in connection with a request for a Section 437c(h) continuance is inadequate, courts still have discretion to grant the request for a continuance of hearing on a motion for summary judgment or summary adjudication if there is good cause to do so.   (Chavez v. 24 Hour Fitness USA, Inc. (2015) 238 Cal.App.4th 632, 644).  In this Court’s view, there is not good cause to continue the hearing on Defendants’ motion for summary judgment or summary adjudication.  The case has been pending for over six years now, and the trial in the case is just five months away.  There is not good cause for further delay of proceedings.

Finally, while the Court is deferring ruling on the Barrett Defendants’ motion until the hearing on the overlapping Wakefield motion, the Court has made the following rulings on the evidentiary objections submitted in connection with the Barrett Defendants’ motion:

    Plaintiff’s objections to the declaration of Joseph Barrett are overruled in their entirety. 
   
Plaintiff’s objections to the declaration of Todd Wakefield are waived because the objections were untimely -- Plaintiff filed and served these objections a day before the Defendants’ reply brief was due

·       Defendants’ objections to the declaration of Yana Henriks are overruled as to objection numbers 1, 6-9, 11-16, and 18-20.  The objections are sustained as to objection  numbers 2-5 and 17 to the extent Plaintiff is seeking to introduce the documents in question for the truth of the matters asserted therein as opposed to just seeking judicial notice of the existence of the documents.  They are sustained in full as to objection numbers 10 and 13.

·       Defendants’ objections to the Plaintiff’s declaration are overruled in their entirety. 

At the hearing today, the Court will inquire of the Barrett Defendants whether their position that there are no disputed issues of material fact as to the element of causation -- an element that is essential to every one of Plaintiff’s causes of action – still holds in the wake of the Court’s rulings on their evidentiary objections to the declarations of Henriks and the Plaintiff.