Motion for Summary Judgment and/or Adjudication
sanctions are payable to Defendant’s counsel, Stone & Sallus, LLP, within 30 days.
Defendant shall give notice of the ruling.
7 Popal vs. Sajjadian
2024-01384261 Motion for Summary Judgment and/or Adjudication
The court will hear argument from the parties. 8 Rivera vs. Marinescu
2025-01462125 Motion to Appear Pro Hac Vice
The application of Ben Martin for admission pro hac vice as counsel for Plaintiff Roseanne Rivera is granted.
Plaintiff shall give notice.
9 Thomas Vogele & Associates, APC vs. Kern River Corridor Endowment and Holding Co.,
2025-01491400 Motion for Summary Judgment and/or Adjudication
On defendant Kern River Corridor Endowment and Holding Co., Inc.’s motion for summary judgment on the complaint of plaintiff Thomas Vogele & Associates, APC, the court is inclined to continue the hearing pursuant to Code of Civil Procedure section 437c(h) for Plaintiff to conduct and complete discovery as described in the Lewis Declaration.
The court will hear from counsel on this, and on whether the trial should be continued as well.
Code of Civil Procedure section 437c(h) states that “[i]f it appears from the affidavits submitted in opposition to a motion for summary judgment . . . 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 decision to grant or deny a continuance request under section 437c(h), is vested in the trial court’s discretion. Braganza v. Albertson’s LLC (2021) 67 Cal.App.5th 144, 152 (citation omitted). Continuance requests under section 437c(h), are to be liberally
granted. Id. “[T]he interests at stake are too high to sanction the denial of [such] a continuance [request] without good reason.” Frazee v. Seely (Fourth Dist. Div. 3 2002) 95 Cal.App.4th 627, 634.) These interests include the importance of deciding cases on their merits rather than on procedural deficiencies. Braganza, 67 Cal.App.5th at 152 (citation omitted).
Here, Plaintiff’s counsel has identified specific discovery that Plaintiff seeks in order to make its case but which it has been deprived of. [See Lewis Decl. (ROA #129).] Counsel points to specific written discovery for which it is seeking further responses from Defendant. [Lewis Decl., ¶¶ 3-12 and Exs. 3-6.] He also describes being stymied in his attempt to take the depositions of Fallgatter and Belli, the Board member who signed the resolution approving the settlement negotiated by Plaintiff (among other things). [Lewis Decl., ¶¶ 13-26.]
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Where a continuance is not mandatory under section 437(h), the court must nevertheless determine whether the party requesting the continuance has established good cause for a continuance. Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 716. The court’s discretion is to be exercised liberally, considering the following factors: length of time the case has been pending, time the requesting party had to oppose the motion, the proximity to the trial date, whether the continuance motion could have been made earlier, whether there were prior continuances for the same purpose.
Cal. Prac. Guide, Civil Proc. before Trial, § 10:208 -208.1 and cases cited there. See also Hamilton v. Orange County Sheriff’s Dept. (2017) 8 Cal.App.5th 759, 765 (reversing summary judgment and order denying request for continuance stipulated to by moving party because, while opposing party did not meet 437c(h) requirements he showed good cause despite not being fully diligent).
To the extent the information sought by Plaintiff’s counsel is relevant, he has made the required showing for a continuance under Code of Civil Procedure section 437c(h). Defendant argues that the information sought by Plaintiff’s counsel is not relevant. Rather than rejecting evidence sight unseen, however, the court is inclined to allow the discovery requested and judge the relevance of the evidence when it is before the court.
The court will hear from the parties on further calendaring.
10 Galindo vs. Sosoatu 1. Motion to Strike Portions of Complaint 2. Case Management Conference