Case Name: Sean Gold v. Charles Sims, et al.

Case No.: 17CV310234

Plaintiff’s Motion for Summary Judgment or in the Alternative for Summary Adjudication

On or about March 15, 2016, plaintiff Sean Gold (“Gold”) and defendant Charles Sims (“Sims”) entered into an agreement whereby plaintiff Gold would lend defendant Sims the amount of money necessary to prevent foreclosure of a rental property owned by defendant Sims in Maryland (“Property”), defendant Sims would sign a promissory note in favor of plaintiff Gold in the amount necessary to prevent foreclosure of the Property plus plaintiff Gold’s expenses in documenting the loan, and defendant Sims would sign and record a deed of trust to secure the loan against the Property. (Complaint, ¶4.)

On or about March 15, 2016, defendant Sims signed a promissory note in the amount of $20,000. (Complaint, ¶5 and Exh. 1.)

On or about March 31, 2016, plaintiff Gold provided defendant Sims $22,919.55, the amount needed to prevent foreclosure. (Complaint, ¶6.)

On or about March 31, 2016, defendant Sims agreed to sign a second promissory note in the amount of $3,269.55 on the same terms and conditions as the first note and to finalize the recording of the deed of trust to secure the loan against the Property. (Complaint, ¶7 and Exh. 2.) Defendant Sims never recorded the deed of trust or signed the second promissory note as agreed. (Complaint, ¶8.)

Under the terms of the promissory note, defendant Sims promised to pay plaintiff Gold $20,000 plus three percent interest on or before March 31, 2017. (Complaint, ¶10.) Defendant Sims breached the promissory note by failing to pay any amount on or before March 31, 2017. (Complaint, ¶11.)

Defendant Sims promised to pay plaintiff Gold $3,269.55 plus three percent interest on or before March 31, 2017. (Complaint, ¶16.) Defendant Sims breached the contract by failing to pay plaintiff Gold any amount on or before March 31, 2017. (Complaint, ¶17.)

On May 15, 2017, plaintiff Gold filed a complaint against defendant Sims asserting causes of action for:

(1) Breach of Promissory Note
(2) Breach of Contract

On October 12, 2017, defendant Sims filed an answer to plaintiff Gold’s complaint.

On January 9, 2018, plaintiff Gold filed the motion now before the court, a motion for summary judgment or, in the alternative, summary adjudication.

II. Defendant Sims’ request for a continuance is GRANTED.

In opposition, defendant Sims requests a continuance of plaintiff Gold’s motion for summary judgment/adjudication pursuant to Code of Civil Procedure section 437c, subdivision (h). Code of Civil Procedure section 437c, subdivision (h) states, in pertinent part, that, “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.”

“To mitigate summary judgment’s harshness, the statute’s drafters included a provision making continuances—which are normally a matter within the broad discretion of trial courts—virtually mandated upon a good faith showing by affidavit that a continuance is needed to obtain facts essential to justify opposition to the motion.” (Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 395; internal punctuation omitted.)

However, “[i]t is not enough to ask for a continuance … in opposing points and authorities. The statute requires that the opposition be accompanied by affidavits or declarations showing facts to justify opposition may exist; or that such showing be made by an ex parte motion on or before the date the opposition is due.” (Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2017) ¶10:207.10, p. 10-87.) In Hill v. Physicians & Surgeons Exch. (1990) 225 Cal.App.3d 1, 7 – 8, the “pleadings contain[ed] no affidavit detailing facts to show the existence of evidence supporting her theory of coverage and the reasons why this evidence could not be presented at the time of the hearing.” “The purpose of the affidavit required by Code of Civil Procedure 437c, subdivision (h) is to inform the court of outstanding discovery which is necessary to resist the summary judgment motion.” (Scott v. CIBA Vision Corp. (1995) 38 Cal.App.4th 307, 325 – 326.)

The opposing party’s declaration in support of a motion to continue the hearing should show the following:
• Facts establishing a likelihood that controverting evidence may exist;
• The specific reasons why such evidence cannot be presented at the present time;
• 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.

(Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2017) ¶10:207.15, p. 10-88 citing Code Civ. Proc., §437c, subd. (h) and Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 254 (Cooksey), et al.)

A declaration in support of a request for continuance under section 437c, subdivision (h) 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.] “The purpose of the affidavit required by Code of Civil Procedure section 437c, subdivision (h) is to inform the court of outstanding discovery which is necessary to resist the summary judgment motion. [Citations.]” [Citation.] “It is not sufficient under the statute merely to indicate further discovery or investigation is contemplated. The statute makes it a condition that the party moving for a continuance show ‘facts essential to justify opposition may exist.’ [Citation.]

(Cooksey, supra, 123 Cal.App.4th at p. 254.)

Here, defendant Sims’ makes a request for a continuance in his memorandum of points and authorities. Defendant Sims submits a declaration in conjunction with his opposition but defendant Sims’ declaration is devoid of any facts relevant to his request for a continuance. “A continuance is not mandatory where no declaration is submitted or the declaration fails to meet the above requirements. Nonetheless, the court must determine whether the party requesting the continuance has established good cause therefore. That determination is within the court’s discretion.” (Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2017) ¶10:208, p. 10-89 citing Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 716; Cooksey, supra, 123 Cal.App.4th at pp. 253 – 254, et al.) “The court’s discretion, however, must be exercised liberally in favor of granting a continuance: ‘The interests at state are too high to sanction the denial of a continuance without a good reason.’” (Id. citing Frazee v. Seely (2002) 95 Cal.App.4th 627, 634; emphasis added.)

Factors the court may consider in deciding to continue include:
The length of time the case has been pending. [10 months: Complaint filed May 15, 2017.]
The length of time the requesting party had to oppose the motion. [2 months: MSJ/MSA filed January 9, 2018.]
The proximity of the trial date or the 30-day discovery cut-off before trial. [No trial date set.]
Whether the continuance motion could have been made earlier. [Continuance made in conjunction with opposition to MSJ.]
Prior continuances for this purpose. [No prior requests for continuance.]
Whether the evidence sought is “essential” to the issue to be adjudicated. [Defendant Sims contends there is evidence of plaintiff’s breach and failure to mitigate damages.]
Death or serious illness of an attorney or party is normally good cause for granting a continuance. [Not applicable.]

(Id. at ¶10:208.1, p. 10-90.)

Since defendant Sims is faced with a potentially dispositive motion and since trial has not yet been scheduled, the court will allow defendant Sims an opportunity to conduct discovery to be able to fend off this motion. In light of the liberality in favor of granting continuances, defendant Sims’ request for continuance is GRANTED. Plaintiff Gold’s motion for summary judgment/ adjudication is hereby continued to July 3, 2018 at 9:00 a.m. in Department 19. Defendant Sims shall file and serve a revised opposition no later than June 19, 2018. A reply, if any, shall be filed and served no later than June 28, 2018.