Case Name: James & Pamela Jacobs v. Satish Ramachandran
Case No.: 17CV312418

This matter arises from a dispute between the owners of adjoining residential properties in Los Gatos over where the legal boundary between the properties is located. Plaintiffs/Cross-Defendants James Leo Jacobs and Pamela Lawrie Jacobs (hereafter “Plaintiffs”) filed a Complaint on June 29, 2017 stating claims for Quiet Title, Declaratory Relief and Permanent Injunction. Defendant/Cross-Complainant Satish Ramachandran (hereafter “Defendant”) filed a Cross-Complaint on August 30, 2017 stating claims for Quiet Title, Declaratory Relief, Injunctive Relief, Private Nuisance, Trespass, Assault and Battery.

Currently before the Court is Plaintiffs’ motion for summary judgment/adjudication of all of their claims as well as all of Defendant’s cross-claims except the sixth and seventh (assault and battery). As an initial matter the Court has exercised its discretion to consider Defendant’s opposition papers, late-filed on May 24, 2019 (a timely opposition was due by May 23). Based on that review, the Court orders that Plaintiffs’ motion will be CONTINUED to a date to de determined, and the Court finds that good cause exists for the motion to be heard within 30 days of the July 15, 2019 trial date.

If a party opposing a motion for summary judgment shows by declaration that essential evidence “may exist but cannot, for reasons stated, then 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.” (CCP §437c(h); See also Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 395.) It is not necessary to show that essential evidence does exist, only that it may exist. (Dee v. Vintage Petroleum, Inc. (2003) 106 Cal.App.4th 30, 34; Frazee v. Seely (2002) 95 Cal.App.4th 627, 634.) An application by way of declaration to continue the motion may be made in opposition papers or by ex parte motion any time on or before the date the opposition to the motion is due. (CCP §437c(h); Ambrose v. Michelin North America (2005) 134 Cal.App.4th 1350, 1353; Chavez v. 24 Hour Fitness USA, Inc. (2015) 238 Cal.App.4th 632, 644.)

A continuance is not mandatory where no declarations are submitted or the declarations fail to meet the requirements set forth in CCP §437c(h) and in court decisions interpreting the statute. The short and somewhat general declarations submitted by Defendant and Defense Counsel Fulvio Cajina do not meet the requirements for a mandatory continuance. However, this does not end the inquiry. The Court must still determine if the party requesting a continuance has established good cause for a discretionary continuance. The Court’s discretion must be exercised liberally in favor of granting a continuance. “The interests at stake are too high to sanction the denial of a continuance without good cause.” (Frazee v. Seely, supra, at p. 634; see also Denton v. City & County of San Francisco (2017) 8 Cal.App.5th 759, 765-766.)

In determining whether to exercise their discretion to continue a summary judgment motion to allow additional evidence to be obtained, most courts consider the following factors: 1) the length of time the case has been pending; 2) the length of time the requesting party had to oppose the motion; 3) the proximity of the trial date or the 30-day discovery cut-off before trial; 4) whether the request for continuance could have been made earlier; 5) prior continuances for this purpose, and; 6) whether the evidence sought is “essential” to the issue to be adjudicated. (See Chavez, supra, at p. 644 [where most of the factors favored continuance, trial court erred in denying it].)

The declarations submitted by Defendant demonstrate good cause for a discretionary continuance. The only factor weighing against a continuance is the third, the proximity of the trial date, and the Court finds that good cause exists to have the motion heard within 30 days of the trial date. The possibility that the site inspection/survey currently set for June 15, 2019 might result in a declaration in direct opposition to the declaration of Plaintiffs’ retained surveyor Bryan Taylor (the primary evidence supporting their motion) means that a continuance clearly might result in evidence “essential” to the evaluation of the motion. “Typically in summary judgment litigation, equally conflicting evidence requires a trial to resolve the dispute.” (Kids’ Universe v. In2Labs (2002) 93 Cal.App.4th 870, 881.)

The parties are directed to meet and confer on a proposed continued hearing date, to take place at a date after Defendant’s site inspection/survey has taken place, and report back to the Court as soon as possible. The Court would prefer that the hearing take place before the settlement conference set for July 10, 2019.