Judge: Richard Y. Lee, Case: 30-2020-01127807, Date: 2022-09-15 Tentative Ruling

Defendants, Rick Sittig (“Sittig”) and Shelley Starr (“Starr”) (collectively “Defendants”) move for an order granting summary judgment in favor of Defendants and against Plaintiff, Mark Becker.

Defendants contend that they are entitled to summary judgment on all three of Plaintiff’s causes of action. As to the First Cause of Action for Nuisance, Defendants argue that the three-year statute of limitations has expired pursuant to Code of Civil Procedure section 338(b) for this permanent private nuisance, and that no private nuisance existed based on testimony from Matthew Cosylion, the Code Enforcement Supervisor for the City of Newport Beach, who stated there was no violation of any Newport Beach Municipal Code (“NBMC”) ordinance.

Defendants also argue that there is no triable issue of fact as to Plaintiff’s Second Cause of Action for Violation of Newport Beach Municipal Code sections as the noise from the two air conditioning units (“Units”) has been thoroughly investigated by the City of Newport Beach (the “City”) who determined that no violation existed.

Finally, Defendants argue that there is no triable issue of fact as to Plaintiff’s Third Cause of Action for Negligence because a duty has not been breached since no ordinances have been violated, and that the two-year statute of limitations for negligence has expired pursuant to Code of Civil Procedure section 335.1.

As to the Second Cause of Action, Plaintiff contends that Defendants have not introduced adequate evidence to shift the burden of production to Plaintiff, as they establish that Mr. Cosylion tested the noise level in the bunkhouse and found a violation of NBMC 10.25.045(a), and argue that the bunkhouse was an improper measurement location based on inadmissible hearsay. Plaintiff also provide that there are triable issues as to whether a violation occurred as whether a measurement taken in the bunkhouse is an appropriate location under NBMC section 10.26.055(A) is at issue and Plaintiff provides evidence that it is, and that Mr. Cosylion took a sound measurement of the Units from the bunkhouse with an ordinance complaint sound meter and recorded a decibel level of 57 dB and 58 dB which are above levels permitted under NBMC. In addition, Plaintiff argues that there is a triable issue of whether Sittig has complied with the permit for the Units and the use of a timer that stops the Units from running between 10 p.m. and 10 a.m.

Plaintiff also argues that even if the Court finds that there is no ordinance violation under the NBMC under the Second Cause of Action, Plaintiff may still proceed under his First Cause of Action for nuisance because the ordinance is not meant to be exclusive, and that while Defendants contend that the noise constitutes a permanent nuisance, it is a continuous nuisance that is easily abatable, such that the statute of limitations has not run. Plaintiff contends that the Declaration of Mark Becker creates a triable issue of material fact that the noise of the Units and the instant 2020 Complaint filing was timely under a continuous nuisance theory, and that the noise from the Unit occurred within close proximity to the filing of the Complaint and continues to the present day.

Plaintiff additionally argues that the Third Cause of Action for Negligence is not barred by the two-year statute of limitations for the same reasons the claim for nuisance is not barred.

Finally, Plaintiff requests a continuance pursuant to Code of Civil Procedure section 437c(h) to (1) allow Plaintiff’s acoustical engineer expert to obtain sound measurements of the Units, (2) allow Plaintiff to obtain Defendants’ expert’s sound measurements, and (3) allow Plaintiff to take the deposition of Defendants as Plaintiff has attempted to do on five occasions without success.

Plaintiff’s supplemental opposition filed on August 31, 2022, provides an update and asserts that the motion should be denied because despite meet and confer efforts to re-schedule Plaintiff’s inspection of Defendants’ property, Defendants have refused to let Plaintiff’s site inspection occur and have blocked Plaintiff’s attempt to conduct an inspection to take measurements. Plaintiff argues that the motion should also be denied because Defendants have outright refused to appear for deposition although Plaintiff has now served six deposition notices and has attempted to cooperate by offering to allow the depositions to occur remotely and meeting and conferring regarding the dates of the deposition, but defense counsel ignored these efforts and objected again despite the pending motion for summary judgment. Plaintiff argues that if the Court does not deny the motion, the Court should continue it and order Defendants to allow the inspection and to conduct Defendants’ deposition.

Continuance Pursuant to Code of Civil Procedure section 437c(h)

Code of Civil Procedure section 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, 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.” (Code Civ. Proc. § 437c(h).)

A continuance is a matter within the broad discretion of the court but is “virtually mandated ‘ “upon a good faith showing by affidavit that a continuance is needed to obtain facts essential to justify opposition to the motion.” [Citation.]’ [Citation.]” (Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 395.) Continuances are to be liberally granted.” (Ibid.) “Where the opposing party submits an adequate affidavit showing that essential facts may exist but cannot be presented timely, the court must either deny summary judgment or grant a continuance. [Citation.]” (Dee v. Vintage Petroleum, Inc. (2003) 106 Cal.App.4th 30, 34-35.) “The nonmoving party seeking a continuance ‘must show:  (1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain these facts. [Citations.]’ [Citation.]” (Frazee v. Seely (2002) 95 Cal.App.4th 627, 633.) “[T]he affiant is not required to show that essential evidence does exist, but only that it may exist.” (Id. at p. 634.) The declaration should also provide an estimate of the time necessary to obtain such evidence; and the specific steps or procedures the opposing party intends to utilize to obtain such evidence. (Code Civ. Proc. § 437c(h); see Granadino v. Wells Fargo Bank, N.A. (2015) 236 Cal.App.4th 411, 420 [declaration that “additional information and testimony” required to “adequately respond to Defendant's Motion” insufficient]; Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 254 [merely stating “further discovery or investigation is contemplated” not sufficient].)

A continuance is not mandatory where the party opposing the motion fails to submit an affidavit that outstanding discovery could lead to evidence necessary to refute the essential facts of preemption, and it is not an abuse of discretion to deny a continuance under such circumstances. (Scott v. CIBA Vision Corp. (1995) 38 Cal.App.4th 307, 325-326.) Nonetheless, the court must determine whether the party requesting the continuance has established good cause for it. That determination is within the court's discretion.  (Lerma v. County of Orange (2004) 120 Cal.App.4th 709; Chavez v. 24 Hour Fitness USA, Inc. (2015) 238 Cal.App.4th 632, 643, 644 [abuse of discretion to refuse continuance when papers showed proposed discovery “essential” to the opposition].)

Here, Plaintiff has submitted a declaration from Plaintiff’s counsel providing that Plaintiff made a Demand for Inspection of Defendants’ property to have Plaintiff’s acoustical engineer take code compliant sound measurements of the Units from multiple points on Plaintiff’s property which was taken off calendar in reliance on the parties’ stipulation to continue the hearing date on the instant motion and trial date to allow the matter to be mediated which stipulation was filed with the Court; that Defendants made a Demand for Inspection of Plaintiff’s Property and on July 8, 2021, Defendants’ expert inspected Plaintiff’s property and took several sound measurements of the Units operating but that they have not offered any of the measurements taken by their expert; and that Plaintiff has noticed the depositions of Defendants five times, including for December 18, 2020, November 18, 2021, March 9, 2022, April 25, 2022, and May 25, 2022, but that counsel has objected to each notice and failed to produce Defendants. (Declaration of Christopher J. Ohlsen, ¶¶ 2-14; Exs. 2-6.) These statements tend to show that there are facts to be obtained that are essential to opposing the motion and the reasons why additional time is needed to obtain these facts.

Plaintiff’s counsel’s declaration filed in support of the supplemental opposition filed on August 31, 2022, provides that Plaintiff’s counsel reached out to defense counsel about re-scheduling the site inspection, but that defense counsel did not respond, and that Plaintiff served a First Amended Demand for Inspection of Real Property on July 22, 2022, to which defense counsel responded with an objection on August 19, 2022, although Plaintiff allowed Defendants to conduct a similar demand for inspection and Defendants’ demand was used as a model for drafting Plaintiff’s demand. (Supplemental Declaration of Christopher J. Ohlsen, ¶¶ 3-7, 11-12; Exs. A-C, F.) It also provides that defense counsel indicated that Defendants would not be allowing an even more limited inspection and has not responded any further, and that Plaintiff is filing a Motion to Compel a Further Response to the Demand for Inspection and a Motion to Compel the Deposition of Defendants. (Supplemental Declaration of Christopher J. Ohlsen, ¶¶ 19, 20; Ex. I-K.) Plaintiff’s counsel additionally provides that Plaintiff has now noticed the depositions of Defendants six times and they have still not appeared, and has attempted to meet and confer on dates and in allowing remote depositions, but Defendants have refused to appear. (Supplemental Declaration of Christopher J. Ohlsen, ¶¶ 14-18; Exs. G.)

“Civil discovery is intended to operate with a minimum of judicial intervention.  [I]t is a central precept of the Civil Discovery Act ... that discovery be essentially self-executing[.]  [Citations].” (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 402.)  It is improper for a party to deny the opposing side appropriate discovery and then seek summary judgment.

Accordingly, Plaintiff’s request for a continuance is granted.  The motion for summary judgment is continued to 2/9/2023 at 1:30 p.m.  Opposition and Reply papers are due per code. 

Plaintiff to give notice.