Ashley Sterling, et al. v. Atlas Const. et., et al. CASE NO. 18CV327545
DATE: 28 January 2020 TIME: 9:00 LINE NUMBER:
This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 20 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 20 at 408.808 and the opposing party no later than 4:00 PM on 27 August 2020. Please specify the issue to be contested when calling the Court and counsel.

ORDER ON DEFENDANT ELI ASSOULINE’S MOTION FOR SUMMARY JUDGMENT

I. Factual and Procedural Background

Plaintiffs filed this case on May 2, 2018.

Plaintiffs Ashley Sterling and Matthew Sterling (collectively, “Sterlings”) are owners of real property commonly known as 435 N 19th Street in San Jose (“Subject Property”). (First Amended Complaint (“FAC”), ¶1.)

In or about August 2017, plaintiff Sterlings hired defendant Atlas Construction & Development, Inc. dba Good Fellas Construction (“Good Fellas”) to construct an addition to the Subject Property for the price of $160,000. (FAC, ¶7.) By February 2018, plaintiff Sterlings paid defendant Good Fellas approximately $133,500. (Id.)

Defendants failed to complete the construction agreed upon pursuant to the written contract with plaintiff Sterlings. (FAC, ¶8.) Plaintiff Sterlings discovered a number of deficiencies/ conditions that were not constructed in accordance with applicable code or in accordance with the plans. (Id.) On or about March 2017, plaintiff Sterlings notified defendant Good Fellas of the deficiencies, but defendant Good Fellas failed to respond. (FAC, ¶9.) Despite numerous requests for a list of the subcontractors who worked on the project, defendant Good Fellas failed to disclose the names of entities that performed work on the Subject Property. (FAC, ¶10.) For several months, plaintiff Sterlings have been unable to live in the Subject Property and incurred out of pocket costs. (FAC, ¶11.) Plaintiff Sterlings are in the process of hiring new contractors to complete the construction project and to remedy the deficiencies. (FAC, ¶12.)

On May 2, 2018, plaintiff Sterlings filed a complaint against defendant Good Fellas, Amnon Peter Nosek (“Nosek”), and Maria Natalia Assouline asserting causes of action for:

(1) Breach of Contract
(2)
(3) Negligence
(4)
(5) Common Count for Money Had and Received
(6)
(7) Breach of the Implied Covenant of Good Faith and Fair Dealing
(8)
(9) Breach of Express and Implied Warranties
(10)

On July 18, 2018, plaintiff Sterlings filed a Doe amendment substituting Eli Assouline (“Assouline”) for a Doe defendant.

On August 15, 2018, the court clerk dismissed defendant Maria Natalia Assouline without prejudice at the request of plaintiff Sterlings.

On August 29, 2018, plaintiff Sterlings filed the operative FAC against defendants Good Fellas, Nosek, and Assouline asserting claims for:

(1) Breach of Contract
(2)
(3) Negligence
(4)
(5) Common Count for Money Had and Received
(6)
(7) Breach of the Implied Covenant of Good Faith and Fair Dealing
(8)
(9) Breach of Express and Implied Warranties
(10)

On December 27, 2018, the court clerk dismissed defendant Nosek without prejudice at the request of plaintiff Sterlings.

On January 25, 2019, defendant Assouline filed an answer to the Sterlings’ FAC.

On April 25, 2019, defendant Good Fellas filed an answer to the Sterlings’ FAC.

On September 5, 2019, defendant Assouline filed the motion now before the court, a motion for summary judgment of the Sterlings’ FAC.

II. Plaintiffs’ Request For A Continuance.

Plaintiff Sterlings argue initially that defendant Assouline’s motion for summary judgment should be denied or continued because defendant Assouline has obstructed discovery in refusing to appear for deposition. Plaintiff Sterlings make this request 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 2018) ¶10:207.10, p. 10-89.) 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 and why the information sough is essential to opposing the motion;
•
• 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 2018) ¶10:207.15, pp. 10-89 to 10-90 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, plaintiff Sterlings’ counsel submits a declaration which recounts his attempts to obtain the deposition of defendant Assouline since June 2019 and the difficulty and lack of cooperation he has faced from defendant Assouline and/or defendant Assouline’s counsel.

“[T]he court must determine whether the party requesting the continuance has established good cause for it. That determination is within the court’s discretion.” (Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2018) ¶10:208, p. 10-91 citing Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 716, et al.) “Usually, the court’s discretion should be exercised in favor of granting a continuance: ‘The interests at stake 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; et al., emphasis added.)

Factors the court may consider in deciding to continue include:

• The length of time the case has been pending. [21 months: Complaint filed May 2, 2018.]
•
• The length of time the requesting party had to oppose the motion. [5 months: MSJ filed September 5, 2019.]
•
• The proximity of the trial date or the 30-day discovery cut-off before trial. [No trial date presently set.]
•
• Whether the continuance motion could have been made earlier. [Continuance granted on November 6, 2019.]
•
• Prior continuances for this purpose. [One prior continuance requested and granted.]
•
• Whether the evidence sought is “essential” to the issue to be adjudicated. [As set forth in the supporting declaration.]
•
• Death or serious illness of an attorney or party is normally good cause for granting a continuance. [Not applicable.] (Id. at ¶10:208.1, pp. 10-91 to 10-92.)
•
In Frazee, supra, the Court of Appeal held that the Trial Court abused its discretion in denying Plaintiff’s request to continue the defense motion for summary judgment. Plaintiff’s attorney informed the trial court he needed more time to complete discovery, specifically stating that deposition transcripts had yet to be received from the reporter, depositions previously scheduled had yet to take place, defendants were in the middle of deposing plaintiff, answers to interrogatories were expected to arrive, and plaintiff needed to depose expert witnesses who filed declarations in support of the summary judgment motion.

This Court does have some comments about the big sticking point in the prosecution of this case which is the deposition of defendant/moving party Eli Assouline.

Santa Clara County Bar Association‘s Code Of Professionalism states, at section 3, SCHEDULING: “a lawyer should understand and advise the client that civility and courtesy in scheduling meetings, hearings, and discovery are expected as professional conduct.

Section 9 of the Code, DISCOVERY, states, in part: “A lawyer should engage in a meaningful and good faith effort to resolve discovery disputes and should only bring discovery issues to the court for a resolution after open brackets informal]’s efforts have been unsuccessful.“

While the record does show that the parties were attempting to negotiate the terms of the deposition of Eli Assoulines, one might wonder why the attempts did not start until June of 2019. Additionally, while it is nice that defense counsel offered to produce Mr. Assoulines in Los Angeles, it was with the caveat that he not be served with a summons and complaint in another action. If plaintiffs were not satisfied with the progress in setting this deposition, they could have done so at an earlier time and in a code-compliant manner.

Since plaintiff Sterlings are faced with a potentially dispositive motion, since a trial date has not yet been scheduled, and since it appears plaintiffs have made more or less diligent efforts to obtain defendant Assouline’s deposition, the Court will allow plaintiffs an opportunity to conduct further discovery to be able to oppose defendant Assouline’s motion for summary judgment.

III. Order.

In light of the liberality in favor of granting continuances, plaintiff Sterlings’ request for continuance of this motion for Summary Judgment is GRANTED. Defendant Eli Assouline’s motion for summary judgment is continued to April 28, 2020. Plaintiff Sterlings may file a revised or amended opposition which will completely supersede the opposition papers filed on or about January 14, 2020. The deposition of Eli Assoulines shall commence in a code-compliant location within 30 days of the date of the filing of this Order.

_______________¬¬¬____________

DATED: ______________________¬¬¬________________________

HON. SOCRATES PETER MANOUKIAN

Judge of the Superior Court

County of Santa Clara