Jolene Henderson vs. Tribravus Enterprises, LLC

2016-00194434-CU-PL

Jolene Henderson vs. Tribravus Enterprises, LLC

Nature of Proceeding: Motion for Summary Judgment and/or Adjudication

Filed By: Quinn, Stephanie L.

Defendants Tribravus Enterprises, LLC, dba iForce Nutrition, and Hi-Tech Pharmaceutical, Inc. (collectively “Defendants”) move for summary judgment, or in the alternative, summary adjudication on Plaintiff Jolene Henderson’s Complaint, in which Plaintiff alleges several causes of action arising out of her testing positive for certain banned substances after taking a dietary supplement called Dexaprine XR.

Defendants’ motion for summary judgment is DENIED; their alternative motion for summary adjudication is GRANTED in part, and DENIED in part, as follows.

Request for Judicial Notice

Defendants’ request for judicial notice is unopposed and granted.

Plaintiff asks the Court to take judicial notice of three documents: (1) a criminal indictment, (2) a verified complaint for forfeiture, and (3) the World Anti-Doping Code 2015 Prohibited List. The request is denied as to the first and second documents since they are irrelevant to the Court’s ruling. The request is granted as to the third document.

Evidentiary Objections

Defendants’ evidentiary objections Nos.1 (to Plaintiff’s deposition) and 2 (to the deposition of Amy Moore) are overruled on the condition that Plaintiff files the reporter’s certifications necessary to authenticate the deposition transcripts no later than August 10, 2018.

Defendants’ evidentiary objection Nos. 9-21 (to the Declaration of John Travis) are overruled on the condition that no later than August 10, 2018, Plaintiff files John Travis’ curriculum vitae, which is referenced in his declaration but was not actually attached as an exhibit thereto. Defendants argue, inter alia, that Travis’ declaration is

irrelevant “as it is being presented by Plaintiff on issues not properly before the Court in Plaintiff’s operative Complaint.” (Defs.’ Evid. Objs. 4:26-28.) The Court need not reach this issue since it finds Travis’ declaration is relevant to Defendants’ federal preemption argument raised in their motion.

The Court does not rule on Defendants’ remaining evidentiary objections since they concern evidence immaterial to decision on the motion. (Code Civ. Proc., § 437c, subd. (q).)

Factual Background

This action arises out of Plaintiff’s approximate eight-month suspension from playing professional softball after she tested positive for banned substances Oxilofrine and Beta-methylphenethylamine (“BMPEA”) in May 2015 as a result of taking a dietary supplement called Dexaprine XR.

Plaintiff is a professional softball player. She played softball for four years at the University of California, Berkeley, and graduated in 2013. She then played for Team USA from 2013-2014 and professionally in Japan from 2014-2015. After the positive drug test, Plaintiff states she has played for less money in the United States and Italy.

Dexaprine XR (the “Product”) is a dietary supplement sold at vitamin/nutrition stores. During the relevant time, Defendant Hi-Tech Pharmaceuticals, LLC (“Hi-Tech”) manufactured and Defendant Tribravus Enterprises, LLC (“Tribravus”) sold and distributed the Product. The ingredients listed on the Product’s packaging include “Acacia Rigidula Extract (98%)” and “Citrus Aurantium (30% active amines).”

High-Tech sourced ingredients for the Product from raw material suppliers in China. Defendants contend the Acacia rigidula and Citrus aurantium sent from China are compounds containing several amines or alkaloids such as Oxilofrine and BMPEA. Oxilofrine and BMPEA are banned substances for professional athletes. Neither Oxilofrine nor BMPEA were listed as ingredients on the Product’s packaging.

The United States Anti-Doping Agency (“USADA”) is a national anti-doping organization for, inter alia, Olympic and Pan American sports. The USADA is responsible for managing an anti-doping program, which includes athlete testing, results management, reference resources, and athlete education. Japan has an equivalent organization governing Japanese sports called the Japan Anti-Doping Agency (“JADA”). The World Anti-Doping Agency (“WADA”) monitors the World Anti-Doping Code, which harmonizes the anti-doping policies among countries.

The USADA has a Registered Testing Pool (“RTP”) comprised of certain athletes who have increased anti-doping responsibilities. RTP members must provide the USADA with their “whereabouts information,” including their training and work schedules, so they are available for no-notice, out-of-competition testing. Plaintiff was a member of the USADA’s RTP from July 2014 through March 2015. When she was first included in the RTP, the USADA sent Plaintiff a copy of its “Athlete Handbook.” The handbook contained information relating to doping, including a section concerning dietary supplements. The handbook’s dietary supplement section discussed the risk of a positive anti-doping test results and referenced readers to the USADA’s “high risk” list of products it considered to pose an increased risk of containing a prohibited substance. The USADA’s “high risk” list of dietary supplements has included Dexaprine XR since January 1, 2015. Following her receipt of the Athlete Handbook, Plaintiff took online USADA tutorials and quizzes that covered anti-doping topics, including the risks of taking dietary supplements.

In the spring of 2015, Plaintiff decided to try Dexaprine XR at the recommendation of her friend and fellow professional softball player, Amy Moore. Ms. Moore began taking the Product in the summer of 2014 as a pre-work out supplement at the recommendation of a nutritional store’s owner. Ms. Moore suggested the product to Plaintiff in light of the store owner’s recommendation and because it had been cleared by her Great Britain National Team. Both Plaintiff and Ms. Moore cross-checked the Product’s ingredient list against the USADA and WADA’s lists of prohibited substances. None of the Product’s listed ingredients were banned substances.

Ms. Moore purchased the Product and shipped it to Plaintiff in Japan on April 6, 2015. Plaintiff took the Product approximately 8 or 9 times prior to her May 30, 2015 drug test. That drug test came back positive for banned substances Oxilofrine and BMPEA. As a result, Plaintiff was suspended from play for approximately eight months. Since her positive drug test, Plaintiff has never played softball in Japan again. Plaintiff maintains Japanese professional softball leagues offer American softball players the highest salaries in the world.

Plaintiff alleges multiple causes of action against Defendants premised upon manufacturing defect and failure to warn theories. In essence, Plaintiff alleges Defendants allowed the Product to become contaminated with Oxilofrine and BMPEA during its production and failed to notify users that the Product contained said substances.

Defendants move for summary judgment, or in the alternative summary adjudication, on each of the causes of action alleged in the Complaint. Plaintiff opposes the motion.

Alternatively, Plaintiff requests a continuance under Code of Civil Procedure section 437c, subdivision (h), until discovery is complete, should the Court be inclined to grant the motion.

Legal Standard

In evaluating a motion for summary judgment or summary adjudication, the Court engages in a three step process. First, the Court identifies the issues framed by the pleadings. The pleadings define the scope of the issues on a motion for summary judgment. (FPI Dev. Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382.) The Court cannot consider an unpleaded issue in ruling on a motion for summary

judgment. (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 541.)

Next, the Court must determine whether the moving party has met its burden. A defendant moving for summary judgment or summary adjudication bears the burden of persuasion that one or more elements of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 [quoting Code Civ. Proc., § 437c, subd. (p)(2)].)

In the former case, a defendant is not required to conclusively negate one or more elements of the plaintiff’s cause of action. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 780-781). Rather, to meet its burden, the defendant is only required to show that the plaintiff cannot prove an element of its cause of action, i.e., that the plaintiff does not possess and cannot reasonably obtain evidence necessary to show this element. (Aguilar, supra, 25 Cal. 4th at 853-855.)

In moving for summary judgment based upon an affirmative defense, the defendant’s burden is different. (Consumer Cause, Inc. v. Smilecare (2001) 91 Cal.App.4th 454, 467-68.) There, “‘“the defendant has the initial burden to show that undisputed facts support each element of the affirmative defense” . . . . If the defendant does not meet this burden, the motion must be denied.’ [Citation.]” (Id. at 468.)

Once the moving party has met its initial burden, the burden shifts to the opposing party to show that a material factual issue exists as to the cause of action alleged or a defense to it. (Code Civ. Proc., § 437c, subd. (p); see, generally, Bush v. Parents without Partners (1993) 17 Cal.App.4th 322, 326-327.)

In ruling on the motion, the Court must consider the evidence and inferences reasonably drawn therefrom in the light most favorable to the opposing party. (Aguilar, supra, 25 Cal. 4th at 843.) Summary judgment is properly granted only if the moving party’s evidence establishes that there is no issue of material fact to be tried. (Lipson v. Super. Ct. (1982) 31 Cal.3d 362, 374.)

Discussion

Manufacturing Defect

Defendants argue Plaintiff’s negligence and strict liability claims premised upon an alleged manufacturing defect must be summarily adjudicated in their favor because there is no evidence of a manufacturing defect. Defendants contend:

“Plaintiff’s Complaint alleges a ‘manufacturing defect’ with respect to Dexaprine XR in alleging that Defendants ‘carelessly and negligently’ allowed the product to become ‘contaminated’ with oxilofrine and BMPEA during the production process. [Citation.]

Simply put, however, in containing oxilofrine or

BMPEA, the Dexaprine XR product allegedly consumed by Plaintiff did not differ from the intended result, and there is no evidence that other tablets of Dexaprine XR on the same product line did not contain the same substances. Indeed, the presence of oxilofrine and BMPEA in the product was intentional and not at all the product of ‘contamination’ as Plaintiff alleges in her Complaint. [Citations.] There was therefore no ‘manufacturing defect’ as defined by California law and, in turn, Plaintiff’s negligence and strict liability claims based on this theory must fail.”

(Defs.’ Mem. P.&A. ISO Mot. for Summ. J. (“Mot.”) 8:3-15 [emphasis added].)

“‘“Products liability is the name currently given to the area of the law involving the liability of those who supply goods or products for the use of others to purchasers, users, and bystanders for losses of various kinds resulting from so-called defects in those products.”’ [Citation.]” (Johnson v. United States Steel Corp. (2015) 240 Cal.App.4th 22, 30.) “One may seek recovery in a products liability case on theories of both negligence and strict liability.” (Id. at 30-31.)

Both negligence and strict liability claims can be premised upon an alleged manufacturing defect. (See, e.g., CACI Nos. 1201, 1220; Montez v. Ford Motor Co. (1980) 101 Cal.App.3d 315, 319 [stating in a manufacturing defect case “liability . . .

either in strict liability or in negligence was required to be congruent” and “hinges on [a] manufacturing defect”].)

“A product has a manufacturing defect if it differs from the manufacturer’s intended result or from other ostensibly identical units of the same product line. [Citation.] In other words, a product has a manufacturing defect if the product as manufactured does not conform to the manufacturer’s design.” (Garrett v. Howmedica Osteonics Corp. (2013) 214 Cal.App.4th 173; accord Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 429; see also CACI No. 1202.)

Here, Defendants have shown their entitlement to summary adjudication on Plaintiff’s

negligence and strict liability claims to the extent they are premised upon an alleged
manufacturing defect. In support of their motion, Defendants submitted deposition
testimony from Jared Wheat, a principal of Hi-Tech. Mr. Wheat testified that in

obtaining ingredients for the Product from raw material suppliers in China, Hi-Tech
specified that they include certain amines, including BMPEA. (Wheat Depo 33:14-
36:15, Exhibit 8 to Quinn Decl.) Plaintiff has not proffered any evidence to the contrary.
Since it is undisputed Defendants intended the Product to contain amines including
BMPEA, there cannot be a manufacturing defect due to contamination, as alleged.

The Court notes Plaintiff did not respond directly to Defendants’ arguments concerning a manufacturing defect. Rather, Plaintiff argues there are triable issues of fact as to her negligence and strict liability causes of action premised upon an alleged design defect and/or failure to warn. Although Plaintiff grouped together her failure to warn and manufacturing defect allegations as single counts for negligence and strict liability, Defendants may seek summary adjudication as to these distinct theories. “[U]nder subdivision (f) of section 437c [of the Code of Civil Procedure], a party may present a motion for summary adjudication challenging a separate and distinct wrongful act even though combined with other wrongful acts alleged in the same cause of action.” (

Lilienthal & Fowler v. Super. Ct. (1993) 12 Cal.App.4th 1848, 1854-55.) Therefore, Plaintiff may not defeat Defendants’ motion as to her negligence and strict liability claims to the extent they are based upon a manufacturing defect by demonstrating the existence of a triable issue of material fact concerning a failure to warn. The two theories of liability constitute distinct alleged wrongs, each of which may be summarily adjudicated.

Further, the Court notes Plaintiffs’ counts for negligence and strict liability do not include allegations concerning a design defect. Therefore, evidence and argument offered on a design defect theory are irrelevant as outside the scope of the pleadings. ( Calif. Bank & Trust v. Lawlor (2013) 222 Cal.App.4th 625, 637, fn. 3; accord Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 444-446.)

For the stated reasons, Defendants’ motion for summary adjudication of Plaintiffs’ negligence and strict liability claims as premised upon a manufacturing defect is GRANTED.

Sophisticated User Defense

Defendants argue Plaintiff’s negligence and strict liability claims premised upon a failure to warn are barred by the “sophisticated user” defense. Defendants contend Plaintiff “had received training . . . on the risk [of testing positive for a banned substance] associated with the product[ and] . . . the potential consequences if that risk were to occur.” (Mot. 9:27-10:6.) Therefore, Defendants argue “[i]t is . . . hard to imagine a clearer case of a ‘sophisticated user’ exposing herself to a known risk, and these circumstances are fatal to her negligence and strict liability claims” based on a failure to warn. (Id. at 10:7-9.)

Plaintiff counters that Defendants “have failed to establish the [‘sophisticated user’] affirmative defense . . . for a number of reasons[,]” including “the requisite knowledge that is required by [California case law] to establish the [defense].” (Opp’n 13:20-14:10.)

The Court agrees.

“In general, a manufacturer or supplier has a duty to warn consumers about the dangers and risks inherent in the use of its product.” (Collin v. CalPortland Co. (2014) 228 Cal.App.4th 582, 601.) “A failure to warn gives rise to liability for injuries caused thereby.” (Ibid.)

“The sophisticated user defense is an exception to the general duty to warn.” (Collin, supra, 228 Cal.App.4th at 601.) “Under the sophisticated user defense, sophisticated users need not be warned about dangers of which they are already aware or should be aware.” (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 65.) The “defense applies equally to strict liability and negligent failure to warn cases.” (Ibid.)

“A manufacturer is not liable to a sophisticated user of its product for failure to warn of a risk, harm, or danger, if the sophisticated user knew or should have known of that risk, harm, or danger.” (Johnson, supra, 43 Cal.4th at 71.) “The sophisticated user defense does not require a user’s actual awareness of potential hazards. Rather, a product manufacturer or supplier is not liable for failing to warn a sophisticated user if the user knew or should have known of the product’s risk in light of his training or skill.” (Webb v. Special Electric Co., Inc. (2016) 63 Cal.4th 167, 182.) “‘The focus of the defense … is whether the danger in question was so generally known within the

trade or profession that a manufacturer should not have been expected to provide a warning specific to the group to which plaintiff belonged.’ [Citation.]” (Ibid.)

“[I]n order to establish the defense, the defendant must identify the relevant risk, show that sophisticated users are already aware of the risk, and demonstrate that the plaintiff is a member of the group of sophisticated users.” (Buckner v. Milwaukee Electric Tool Corp. (2013) 222 Cal.App.4th 522, 535.) “[T]he scope of knowledge of the sophisticated user must parallel the scope of the warning that would otherwise be required.” (Ibid.)

There must be “some evidence establishing the state of [the plaintiff’s] peer group’s knowledge.” (Moran v. Foster Wheeler Energy Corp. (2016) 246 Cal.App.4th 500, 518.) “[T]he general state of knowledge in science, medicine, and industry cannot be constructively imputed to [the plaintiff] without some explanation of how that knowledge (or relevant portions of it) was personally conveyed to [the plaintiff] or generally conveyed to [her] peer group.” (Ibid.)

Further, for the defense to apply, the defendant must show that the risk of using its product (not a broader grouping of products) was known by the plaintiff or her peer group. (See Collin, supra, 228 Cal.App.4th 603-604.) For example, in Collin v.

CalPortland Co., the Third Appellate District held that summary adjudication was improperly granted to the defendants based upon the sophisticated user defense when there was no evidence that the plaintiff had specialized knowledge or training with regard to the defendants’ asbestos-containing product, Transite, even though the plaintiff had received some information that being around asbestos-containing materials generally could be hazardous to one’s health. (Ibid.) The Court held, “The duty to warn applies to a defendant’s product so that the consumer can refrain from using that particular product.” (Id. at 603 [emphasis added].)

“Unlike the certified HVAC technician in Johnson v. American Standard, Inc., supra, 43 Cal.4th at page 61, there is no evidence that Loren ever received training or ever read [a safety sheet] concerning Transite. There is also no expert testimony that Loren should have known of the risks or dangers associated with Transite because of his training or work experience. Loren did not recall ever seeing any warnings about the dangers of asbestos on any Transite. He said in response to a special interrogatory asking when he first became aware that defendants’ products contained asbestos that he was unaware of the dangers of asbestos associated with defendants’ products. We cannot say from the evidence presented that the dangers of working with Transite were obvious at the time. [Citation.]”

(Collin, supra, 228 Cal.App.4th at 603-604 [emphasis added].)

Here, like in Collin, Defendants have not presented any evidence that Plaintiff’s peer group was aware of the risk of failing a drug test as a result of using its product, Dexaprine XR. Defendants only submitted evidence that Plaintiff, as a member of the USADA RTP group, was provided an Athlete Handbook that discussed dietary supplements generally. Although the USADA maintained a “high risk” list of products it considered to pose an increased risk of containing banned substances, and that list

included Dexaprine XR, Defendants did not produce any evidence that Plaintiff or her peer group read said list as part of their training. The list was merely referenced in the USADA’s Athlete’s Handbook and on-line tutorials/quizzes. Plaintiff does not recall if she checked the “high risk” list (Pl.’s Response to Defs.’ Undisputed Material Fact No. 36), and Defendants presented no other evidence that Plaintiff or her peer group knew consuming Dexaprine XR posed the risk of testing positive for a banned substance.

For the stated reasons, the portion of Defendants’ motion premised upon the sophisticated user defense is DENIED.

Federal Preemption

Defendants argue they are entitled to summary adjudication on each of Plaintiff’s clams that are premised upon the failure to identify Oxilofrine and BMPEA as ingredients on the Product’s labeling because such claims are preempted by federal law.

Defendants maintain federal law, including the Dietary Supplement Health and Education Act, sets forth in detail federal labeling requirements for dietary supplements. Under federal law, dietary supplements must list each of their “dietary ingredients,” which are defined to include vitamins, minerals, herbs or other botanicals, and amino acids. However, the constituents or alkaloids of a dietary ingredient are not required to be listed.

Defendants contend that Acacia rigidula and Citrus aurantium are dietary ingredients, and that Oxilofrine and BMPEA are component parts thereof. Accordingly, Defendants maintain they were not required under federal law to identify Oxilofrine and BMPEA on the Product’s labeling and that any claims based on such a requirement are preempted by federal law.

This portion of Defendants’ motion depends on Acacia rigidula and Citrus aurantium being “dietary ingredients” and Oxilofrine and BMPEA being constituents thereof. However, Plaintiff has presented evidence disputing both of these premises. In support of her opposition, Plaintiff submitted the declaration of John Travis, an analytical chemist with over 17 years of professional experience analyzing dietary supplements. Mr. Travis avers in pertinent part that it is his opinion to a reasonable degree of scientific certainty that 1) Acacia rigidula does not meet the definition of “dietary ingredient,” (2) there is no scientific evidence that BMPEA is a constituent of Acacia rigidula or any other organism in the plant or animal kingdom, and (3) there is no current scientific evidence that Oxilofrine is a constituent of an organism in the plant or animal kingdom. (Travis Decl. ¶¶ 12, 13, Exhibit 5 to the Decl. of Howard Jacobs ISO Pl.’s Opp’n.)

A triable issue of material fact exists concerning whether the Product’s labeling complies with federal law. Accordingly, the portion of Defendants’ motion for summary adjudication made on the ground of federal preemption is DENIED.

California’s Sherman Food, Drug, & Cosmetic Laws

Defendants argue Plaintiff cannot base a failure to warn claim upon an alleged violation of California’s Sherman Food, Drug, and Cosmetic Laws because they “simply incorporate[] the federal law[,]” which “does not include any requirement that alkaloids of a dietary ingredient must be included on a label.” (Mot. 14:16-15:1.) “As a result,” Defendants contend “the Dexaprine XR label does not violate the provisions of

California’s Health and Safety Code,” and Plaintiff “cannot base her failure to warn claims on this statute.” (Id. at 15:1-2.)

This portion of Defendants’ motion is related to and dependent upon the success of its federal preemption argument. As stated above, a triable issue of material fact exists concerning whether the Product’s labeling complies with federal law. Therefore, this portion of Defendants’ motion is also DENIED.

Breach of Warranty Claims

Defendants contend Plaintiff cannot maintain her third and fourth causes of action, (breach of express warranty and breach of implied warranty) under state or federal law because any claim under the federal Magnuson-Moss Warranty Act and the California Song-Beverly Consumer Warranty Act fail for several reasons. (Mot. 15:3-16:6.)

Plaintiff rejoins that she “has not invoked either of th[e referenced] laws as a basis for her relief; rather, Plaintiff relies on the [California] Uniform Commercial Code.” (Opp’n 16:5-9.)

Since Defendants’ moving papers do not address the statutes upon which Plaintiff’s breach of warranty causes of action are based, Defendants’ motion for summary adjudication on Plaintiff’s third and fourth causes of action is DENIED.

The Court notes that in their reply, Defendants advance a new argument contending any claim under the Uniform Commercial Code must fail for several reasons. (Reply

8:19-9:17.) The Court does not consider these arguments since Defendants’ moving

papers do not identify this issue as a basis for summary adjudication of Plaintiff’s breach of warranty claims.

Misrepresentation Claims

Plaintiff alleges causes of action for intentional and negligent misrepresentation premised upon (a) Defendants’ failure to disclose that the Product contained Oxilofrine and BMPEA (“concealments”) (Compl. ¶¶ 51(a), 51(e), 52, 53), and (b) several representations concerning Defendants’ dietary supplements made through website and/or other written materials (“misrepresentations”) (Compl. ¶ 51(b), (c), (d)).

Defendants state the representations referenced in the Complaint “appear to be taken from the website inforcenutrition.com’s “About Us” page. (Mot. 16:11-12.) Defendants argue they are entitled to summary adjudication on Plaintiff’s causes of action for intentional and negligent misrepresentation to the extent they are premised upon representations made on the website, arguing, inter alia, “Plaintiff did not . . . rely on the iforcenutrition.com “About Us” page when deciding to purchase or consume the Product. (Id. at 17:1-5.)

Both intentional and negligent misrepresentation include as a prima facie element actual and justifiable reliance upon the purported misrepresentations. (See Chapman v. Skype, Inc. (2013) 220 Cal.App.4th 217, 230-231 [discussing the “essential elements” of a count for intentional misrepresentation and negligent misrepresentation].) Here, it is undisputed that “Plaintiff did not rely on the iforcenutrition.com website when deciding to purchase or consume Dexaprine

XR.” (Pl.’s Response to Defs.’ Undisputed Material Fact No. 42.) Accordingly, Defendants have shown their entitlement to summary adjudication on Plaintiff’s causes of action for intentional and negligent misrepresentation to the extent they are

premised upon representations made on the referenced website.

Plaintiff’s Request for a Continuance

To the extent “the Court [is] . . . inclined to grant Defendants’ Motion,” Plaintiff requests the Court “instead grant a continuance until after discovery is complete.” (Opp’n 20:11-17.) In support of her request for a continuance, Plaintiff states, “Plaintiff propounded a final round of written discovery, which once properly responded to – likely will yield additional information that defeats Defendants’ Motion.” (Id. at 20:10-11.)

Code of Civil Procedure section 437c, subdivision (h) provides in relevant part: “If 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 requesting party’s declaration should show: facts establishing a likelihood that controverting evidence may exist and why the information sought is essential to opposing the motion; specific reasons why such evidence could not be presented with the opposition; an estimate of the time needed to obtain such evidence; and the specific steps the party intends to use to obtain such evidence. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2018) ¶ 10:207.15 [citing cases].)

Plaintiff’s request for a continuance under section 437c, subdivision (h) and her counsel’s supporting declaration fail to meet these standards. Plaintiff’s counsel’s declaration does not “explain why [responses to the referenced written discovery are] essential to opposing [Defendants’] motion or why additional time [i]s needed.” (Combs v. Skyriver Communications, Inc. (2008) 159 Cal.App.4th 1242, 1270; see also Granadino v. Wells Fargo Bank, N.A. (2015) 236 Cal.App.4th 411, 420.) Therefore, Plaintiff’s alternative request for a continuance is DENIED.

Conclusion

Defendants’ summary judgment motion is DENIED. Defendants’ alternative motion for summary adjudication is GRANTED in part, and DENIED in part as stated. Plaintiff’s

request for a continuance under Code of Civil Procedure section 437c, subdivision (h) is DENIED.

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