Judge: Walter P. Schwarm, Case: 30-2019-01076330, Date: 2022-10-11 Tentative Ruling

Defendant’s (Linchun Zhao, individually and as trustee of the Zhao Revocable Trust) Motion for Summary Judgment or, in the Alternative, Motion for Summary Adjudication (Motion), filed on 7-26-22 under ROA No. 146, is CONTINUED to a date and time to be determined at the hearing on 10-11-22.

Code of Civil Procedure section 437c, subdivision (h), states, “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. . . .”

Braganza v. Albertson’s LLC (2021) 67 Cal.App.5th 144, 152–153 (Braganza), explains, “Given the high stakes involved in motions for summary judgment and summary adjudication, continuances under section 437c, subdivision (h), are ‘virtually mandated “ ‘upon a good faith showing by affidavit that a continuance is needed to obtain facts essential to justify opposition to the motion.’ ” ’ [Citations.] The affidavit is required to show that ‘ “(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 [or discover] these facts.” ’ [Citations.]” (Footnote 3 omitted.”)

Plaintiffs’ (Bin Sun, Shiming Liang Pang, and Da Jen Gao) Opposition to Motion by Defendant Linchun Zhao for Summary Judgment (Opposition), filed on 9-27-22 under ROA No. 150, states, “Here, Plaintiffs request that the motion be denied, or the hearing on the motion be continued in order for the deposition of both defendants, but especially Defendant Zhao, to be taken.” (Opposition; 5:13-16.)

Plaintiffs have submitted the declaration of their attorney, Thomas D. Shambaugh, in support of their request for a continuance. Plaintiffs ask that the Court continue the hearing to allow Plaintiffs to depose Defendants (Linchun Zhao and Feiwen Wu). Plaintiffs have shown that they first noticed Zhao’s deposition for 4-12-22. (Shambaugh Decl., ¶ 3 and Exhibit A.)  Thereafter, the parties stipulated to continue the trial date and to finish Plaintiff—Bin Sun’s deposition before taking Defendants’ depositions. (Shambaugh Decl., ¶¶ 5 and 6.) After receiving this Motion on 7-26-22, Plaintiffs requested “. . . dates to schedule defendants’ depositions so that they would be completed well before the time our opposition to the motion would be due. . . .” (Shambaugh Decl., ¶ 8.) Having received no response from Defendants’ counsel, counsel for Plaintiffs set the deposition for Defendants—Wu and Zhao on “. . . September 8 and 13, 2022, respectively. . . . (Shambaugh Decl., ¶ 9.) Defendants served objections to the depositions of Defendants—Wu and Zhao, “ .  . . citing the agreement that defendants’ depositions would not be taken until after the parties had concluded with plaintiff’s Plaintiffs’ deposition. . . .” (Shambaugh Decl., ¶ 10.) On 9-6-22, counsel for Plaintiffs sent emails to Defendants’ counsel regarding the depositions and requesting that Defendants “. . . consider another stipulation to continue the trial date based on my personal situation taking care of my 89 year old mother. . . .” (Shambaugh Decl., ¶ 10.)

Further, the Opposition states, “The depositions are necessary for plaintiffs to develop the facts as they relate to plaintiffs claims that Defendant Wu defrauded plaintiffs and that both Wu and Zhao benefitted, purchasing two properties in Irvine worth over $5 million combined, with the property in Zhao’s name worth over $2 million. While Zhao submitted a declaration in support of her motion, she does not address the issues raised by Plaintiffs’ complaint, namely the source of the funds used to acquire the two properties, or her husband’s activities in China before they came to the U.S.” (Opposition; 6:3-9.)

Based on the foregoing, Plaintiffs have sufficiently shown that the facts to be obtained through the depositions of Defendants are essential to opposing the motion, and that there is reason to believe such facts may exist.  Plaintiffs have explained that they need more time to obtained these facts because of the scheduling issues regarding Defendants’ depositions.

Therefore, the court CONITNUES Defendant’s (Linchun Zhao, individually and as trustee of the Zhao Revocable Trust) Motion for Summary Judgment or, in the Alternative, Motion for Summary Adjudication (Motion), filed on 7-26-22 under ROA No. 146, to a date and time to be determined at the hearing on 10-11-22 pursuant to Code of Civil Procedure section 437c, subdivision (h).

Plaintiffs are to give notice.