Filed 6/1/20 Boyd v. J.H. Boyd Enterprises CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

KENNETH R. BOYD, Individually and as Trustee, etc., et al.,

Cross-complainants and Appellants,

v.

J.H. BOYD ENTERPRISES, INC., et al.,

Cross-defendants and Respondents.

F075161

(Super. Ct. No. 15CECG00915)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Jeffrey Y. Hamilton, Jr., Judge.

Law Offices of Allan R. Frumkin, Inc., Allan R. Frumkin; Law Offices of Joseph H. Boyd and Joseph H. Boyd for Cross-complainants and Appellant.

McCormick, Barstow, Sheppard, Wayte & Carruth and Scott M. Reddie for Cross defendant and Respondent, J.H. Boyd Enterprises, Inc.

Whelan Law Group, Walter W. Whelan and Lucas C. Whelan for Cross-defendants and Respondents, Martha Marsh, Louise Autenrieb, Robert Marsh and Frederick Autenrieb.

-ooOoo-

J.H. Boyd Enterprises, Inc. (JHBE) sued Kenneth Robert Boyd (Ken) and Susan K. Boyd (Susan), as trustees of The Boyd Trust dated December 23, 1999 (the Boyd Trust) (collectively, appellants), for breach of a $2.5 million written promissory note, which was secured by a deed of trust on a parcel of real property Ken owned. Appellants cross-complained against JHBE and Ken’s sisters and their husbands, Martha and Robert Marsh, and Louise and Fredrick Autenrieb (collectively, the individual cross-defendants), alleging 19 causes of action. Four of those causes of action were based on a purported oral agreement between Ken and his father, Joseph Haig Boyd (J.H.), who originally held the note as trustee of the Joseph Haig Boyd Trust (JHB Trust), that Ken could extend the note’s due date until the real property was sold or developed. The remaining causes of action were tort-based claims against the individual cross-defendants alleging they mismanaged JHBE and alienated J.H. from Ken and his brother, Joseph D. Boyd, which led to J.H. amending the terms of his trust to favor Martha and Louise, and a claim for dissolution of JHBE.

JHBE and the individual cross-defendants (collectively, respondents) filed a joint motion for summary judgment on the cross-complaint. While the trial court denied summary judgment, it granted summary adjudication on four contract-based claims against JHBE and 11 tort-based claims against the individual cross-defendants. Appellants subsequently filed a motion for reconsideration under Code of Civil Procedure section 1008 or, in the alternative, for relief under section 437, subdivision (b), as to eight of the causes of action alleged against the individual cross-defendants, which the trial court denied.

Appellants contend the trial court erred in granting summary adjudication on the four contract-based claims and seven of the tort-based claims. They also assert the trial court abused its discretion when it denied the motion for reconsideration or for relief under section 437, subdivision (b). Finding no merit to appellants’ claims, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

I. Background Facts
II.
Ken began working with his father, J.H., in 1967, and they became business partners in 1971. J.H. taught Ken the real estate business and together they sold homes, made loans, built subdivisions and created a family business. In 1991, J.H. retired from his real estate business and opened a separate office for his corporation, JHBE, an entity he used to manage his personal investments and properties.

In 2003, Ken began developing Cobblestone Creek, a five-phase subdivision in Kerman. After the first two phases were nearly completed, another developer approached Ken and asked to purchase the remaining three phases sequentially, with escrows closing on each phase over time. The most valuable phase was “Phase 5”—a 20-acre parcel on Modoc Avenue (the Modoc property), which Ken expected to sell for nearly $5 million. J.H., as trustee of the JHB Trust, owned a 17-acre parcel on California Avenue (the California property) across the street from Ken’s project. Ken discussed with J.H. the possibility of selling the California property to the developer. Ken approached the developer and offered to include the California property in the sale, which the developer agreed to purchase for approximately $3.5 million. Ken and J.H. then decided to place the escrow on the California property between the escrow on Phases 4 and 5 of the Cobblestone Creek development, so escrow would close in this order: (1) Phase 3; (2) Phase 4; (3) the California property; and (4) Phase 5—the Modoc property.

According to Ken, he and J.H. then made two agreements. The first was for the JHB Trust to lend $2.5 million to the Boyd Trust, whose trustees are Ken and his wife, Susan. The loan was memorialized in a promissory note issued on February 15, 2007, executed by Ken and Susan as trustees for the Boyd Trust in favor of the JHB Trust, by which they agreed to pay $2.5 million at six percent interest “[o]n or before September 1, 2009.” The note was secured by a deed of trust on the Modoc property.

The second agreement was an oral “option agreement” that allowed the Boyd Trust to extend the note’s due date “as often as reasonably necessary to effectuate the sale of the 20-Acre Modoc Property” (the oral agreement). Consideration for the oral agreement consisted of the agreement to have the escrow on the California property close before the escrow on the Modoc property, thereby possibly jeopardizing the sale of the Modoc property, and Ken’s waiver of his approximately $210,000 commission for facilitating the sale of the California property.

In 2008, after escrow closed on the California property, the developer was forced to withdraw from the agreement to purchase the Modoc property. On June 11, 2008, J.H., on the JHB Trust’s behalf, and Ken, on the Boyd Trust’s behalf, executed an amendment to the note extending the due date to September 1, 2011 (the 2008 amendment).

Over the next few years, the real estate market in California and the rest of the country plummeted and the building of new subdivisions came to a standstill. On December 20, 2010, J.H. and Ken executed a “Modification Agreement,” which extended the deadline for the Boyd Trust to pay the note to September 15, 2014 (the 2010 modification). Under the 2010 modification, the Boyd Trust agreed to make a $175,000 principal and interest payment on September 15 of each year until 2014, at which time the entire unpaid balance of the note would be due. According to Ken, in executing the 2010 modification, J.H. reiterated that Ken could have as much time as he needed to develop or sell the Modoc property to pay off the note, and if the market had not recovered by the new due date, the Boyd Trust could get another extension pursuant to the oral agreement. In July 2012, Martha, acting as trustee of the JHB Trust, assigned the note to JHBE.

By 2014, the real estate market had not sufficiently recovered to either sell or subdivide the Modoc property. Ken attempted to sell another property to pay off the note, but the deal fell through in August 2014. In addition, Ken underwent quadruple bypass heart surgery. Ken notified JHBE of these events and sent JHBE a letter in which he stated that because the sale of his ranch fell out of escrow and would not close, “I will not be in a position to pay off the loan at this time.” Ken asked “for an extension of time, or if you would like to make other types of arrangements, I am open to your suggestions.”

At the time, J.H. was no longer running JHBE due to his health and advanced age. Instead, Martha was the president and chairperson of the board of directors; she controlled the corporation with her husband, Robert, and sister, Louise. JHBE responded to Ken’s request by stating it would “consider a short-term extension” if specific conditions were met. Ken had a difficult time negotiating an extension due to his health. On September 17, 2014, before he had the opportunity to discuss the terms of an extension, JHBE notified him that he was in default on the note and demanded payment in full. Subsequent negotiations were unsuccessful. J.H. passed away in March 2015.

III. This Lawsuit
IV.
In March 2015, JHBE sued Ken and Susan, individually and as trustees of the Boyd Trust, to enforce the note, alleging causes of action for breach of contract and judicial foreclosure. JHBE later filed a first amended complaint (amended complaint).

A. The Cross-Complaint
B.
In August 2015, Ken and Susan, individually and as trustees of the Boyd Trust, filed a cross-complaint against JHBE and the individual cross-defendants. The operative first amended cross-complaint (FACC), filed on October 6, 2016, contained 19 causes of action, four of which were based on the oral agreement.

1. The Claims Based on the Oral Agreement
2.
The first cause of action for breach of contract alleged J.H. and Ken orally agreed the Boyd Trust “had the option to extend the deadline of the Note as often as Ken Boyd felt was reasonably necessary,” and JHBE breached that agreement by denying Ken’s request to extend the note.

The second cause of action for promissory estoppel alleged, as an alternative to the breach of contract cause of action, that (1) J.H. promised Ken and the Boyd Trust they “had the option to extend the term of the $2.5 Million Loan as often as Ken Boyd deemed reasonably necessary” based on the condition that Ken sell the California property before the Modoc property; (2) Ken sold the California property, thereby losing the sale of the Modoc property and forfeiting approximately $4.95 million in liquid assets, and waived his real estate commission on the sale; (3) Ken and the Boyd Trust reasonably relied on J.H.’s promise, the terms of which they communicated to JHBE’s board of directors on numerous occasions; and (4) JHBE breached the terms of the promise by refusing to extend the note’s terms.

The third cause of action for breach of the implied covenant of good faith and fair dealing, alleged JHBE demanded an increase in annual payments and additional security in response to Ken’s request to extend the note pursuant to the oral agreement. When Ken proposed an agreement that would meet these terms, JHBE failed to execute the proposed agreement and instead filed this lawsuit without telling Ken, Susan and the Boyd Trust that negotiations had ceased.

Finally, the fourth cause of action for interference with contract alleged Martha, Louise and Robert “attempted numerous times to convince J.H. Boyd to renege” on the oral agreement’s terms, and “[w]hen it became apparent that J.H. Boyd would not renege” on the oral agreement, Martha, Louise and Robert, “as Board of Directors of [JHBE], purchased the $2.5 Million Loan with the intent of breaching the terms of the [oral] Agreement.” The claim further alleged the Boyd Trust was harmed by the actions of Martha, Louise and Robert.

C. The Tort-Based Claims
D.
Of the remaining 15 causes of action alleged in the FACC, only seven are at issue in this appeal, namely, the 10th through 16th causes of action.

Three causes of action were alleged against Martha and Louise. The 10th cause of action for elder abuse alleged that beginning in 2011, if not earlier, Martha and Louise seized control of J.H.’s assets through “the intentional and effective use of rage, anger, fraud, and deception,” and listed 11 acts claimed to be “[a] sample of such acts.” It further alleged the sisters isolated J.H. through their “oppressive and harassing behavior” in order to alienate him from family and prevent him from obtaining the truth about his financial condition. The 11th cause of action for revocation of trust instrument sought to revoke a “Third Declaration of Trust,” which J.H. executed allegedly as a result of the sisters’ undue influence, and listed eight purported acts of undue influence. The 15th cause of action for conversion alleged the sisters interfered with J.H.’s property by refusing him access to his personal assets, transferring his personal assets into their own names, and coercing J.H. to change the terms of the JHB Trust.

The 12th and 13th causes of action for intentional and negligent misrepresentation were brought against Martha, Louise and Robert. These causes of action alleged they either intentionally or negligently made false representations in order to influence J.H.’s decisions regarding the JHB Trust’s administration and based on those misrepresentations, J.H. authorized the sale of the note and altered the trust instrument to the detriment of Ken and the descendants of his late brother, Joseph.

Two causes of action were alleged against Martha in her role as trustee of the JHB Trust. The 14th cause of action for breach of fiduciary duty alleged Martha breached her fiduciary duty to the JHB Trust’s beneficiaries based on seven purported acts. The 16th cause of action for negligence alleged she breached her duty to the JHB Trust as its trustee by “numerous acts,” and lists four of which resulted in harm to the trust’s beneficiaries.

V. The Summary Judgment Motion on the Cross-Complaint
VI.
In July 2016, JHBE moved for summary judgment on the amended complaint. The following month, JHBE and the individual cross-defendants filed a joint motion for summary judgment or, in the alternative, summary adjudication as to appellants’ FACC. In the motion, they addressed all causes of action except the ninth cause of action against JHBE for dissolution and accounting.

A. The Moving Papers
B.
As pertinent here, JHBE argued it was entitled to judgment on the breach of contract claim because the Boyd Trust did not pay the note when due, and the purported collateral oral agreement was unenforceable under the parol evidence rule, violated the statute of frauds, and was unconscionable.

JHBE contended the promissory estoppel claim was not actionable as a matter of law because (1) the alleged promise was not clear and unambiguous; (2) it was not reasonable for Ken to believe the oral agreement would be enforceable; (3) preliminary negotiations that precede a formal written agreement are insufficient to create an estoppel as a matter of law; and (4) the Boyd Trust cannot show how it would be injured if it was made to abide by the note’s express terms.

JHBE asserted the claim for breach of the implied covenant of good faith and fair dealing failed because the implied covenant cannot impose a contractual duty that is directly at odds with the parties’ express agreement, namely, the note.

Finally, respondents argued the interference with contract claim against the individual cross-defendants failed because the oral agreement was not enforceable. In addition, as directors of JHBE, the individual cross-defendants were not strangers to the contract, but rather agents of the principal who owned the note, and therefore could not be liable for interference.

As for the 10th through 16th causes of action, the individual cross-defendants submitted declarations denying they made the statements or took the actions alleged to be wrongful. Based on these denials, the individual cross-defendants argued appellants could not substantiate the allegations of wrongdoing.

Martha and Louise declared J.H. reviewed and approved the third declaration of trust, which was prepared by independent counsel, Robert Mallek, who advised J.H. from August 30, 2013, until J.H.’s death. Martha and Louise further declared they did not exert any undue influence on J.H. to cause him to execute the third declaration of trust and based on their conversations with J.H., he was well-informed about the document and in favor of executing it because it implemented his own plans. Martha and Louise denied berating J.H., demanding gifts that were originally intended for their brothers, lying to J.H. that Ken was the cause of J.H. being destitute, or prohibiting J.H. from discussing financial or estate planning matters with their brothers through the use of third-party caretakers.

Both Martha and Louise denied engaging in elder abuse in the way they treated their father or that they made misrepresentations to J.H. to influence his decisions regarding the administration of his trust. Specifically, Martha and Louise denied they (1) refused to allow J.H. access to his bank account or personal assets; (2) took cash from him and refused to allow him to use it; (3) told J.H. he was destitute or misrepresented his financial position so he would believe he was destitute; (4) forced J.H. to change his estate planning documents to provide greater gifts to them and diminish the gifts to Ken and Joseph; (5) yelled at and berated J.H. if he used cash or other assets for a purpose of which they did not approve; (6) prohibited friends and family from visiting J.H.; (7) prohibited J.H. from making phone calls; (8) lied to J.H. about other family members’ intentions in order to diminish his relationship with them; (9) hired a caretaker to enforce unnecessary prohibitions relating to J.H.; or (10) prohibited J.H. from providing for his children and grandchildren, or making gifts to his family and charities, as he saw fit. They also denied telling J.H. that Ken and the Boyd Trust were the reason for the JHB Trust being destitute and they never intended to pay back the note, or that the note was secured by valueless property.

Martha and Louise further denied they, either individually or as an officer of JHBE, transferred J.H.’s personal assets to their own names for their own benefit, or assumed any role or undertook any actions to coerce their father to change the terms of his trust to provide greater bequests to them. Martha and Louise also did not force J.H. to change the JHB Trust in a manner that was not allowed by law or that caused negative tax consequences; rather, before any changes were made to the JHB Trust, they ensured J.H. had the advice of a competent attorney and accountant.

Martha denied breaching any duties she owed to the beneficiaries of the JHB Trust by (1) misrepresenting the JHB Trust’s financial condition to J.H.; (2) refusing J.H. access to the JHB Trust’s bank accounts; (3) refusing J.H. access to his own cash; and (4) forcing J.H. to change the JHB Trust to provide greater gifts to the sisters and diminish the gifts to the brothers.

Finally, Robert denied making false statements to J.H. or anyone else regarding Ken or the Boyd Trust, including the following statements: (1) Ken and the Boyd Trust intended to defraud J.H., the JHB Trust, or JHBE; (2) Ken and the Boyd Trust lacked the necessary means and ability to pay their debts to J.H., the JHB Trust, or JHBE; (3) J.H. was destitute and Ken was the reason for that; (4) Ken acted illegally in his transactions with JHBE; and (5) Ken and the Boyd Trust, as well as the corporations they owned, were on the verge of bankruptcy.

C. Appellants’ Opposition Papers
D.
In their opposition, appellants argued summary judgment on the breach of contract cause of action was not warranted because there were triable issues of fact as to which party was in breach of the agreement and whether appellants detrimentally relied on promises made by the assignor of the note that would excuse performance. They further argued there was a triable issue of fact as to the existence of the oral agreement, and the oral agreement was not barred by the statute of frauds, did not violate the parol evidence rule, and was not unconscionable. As for the promissory estoppel claim, appellants argued there were triable issues of fact as to the benefits JHB Trust received, and the detriment appellants experienced, as a result of the oral agreement.

As for the claims for breach of the implied covenant of good faith and fair dealing and interference with contract, as well as the 10th through 16th causes of action, appellants essentially repeated the allegations of the FACC, arguing they created a triable issue of fact.

The only evidence submitted in support of the opposition was Ken’s declaration. Seven paragraphs of Ken’s declaration were directed at the 10th through 16th causes of action and addressed the individual cross-defendants’ denials that they did the acts alleged in the FACC. In those paragraphs, Ken declared that Martha and Louise “began a systematic and calculated effort to isolate J.H. Boyd from his other family members.” He stated: “I am informed and believe, and thereon allege, that Martha Marsh and Louise Autenrieb took away J.H. Boyd’s cash and denied him access to his bank accounts. They prevented him from providing gifts to family members as he historically did in the past, while at the same time obtained personal assets of J.H. Boyd for their own personal use. When he questioned them or disagreed with them, he was verbally berated and harassed.”

Ken further declared that Martha and Louise “intentionally fired J.H. Boyd’s longstanding caretaker and hired a caretaker that answered to them for continued employment,” which “gave them an ‘inside man’ to do their bidding and keep them informed of all efforts of family to spend time with J.H. Boyd.” Thus, “[w]henever a family member came to visit, especially me, their hired caretaker would contact Martha and/or Louise who would then come to J.H. Boyd’s house and monitor the conversation or ask the visitor to leave.”

Ken stated J.H. was not allowed to have private conversations with him or other family members, either in person or by telephone, and Martha and Louise did not allow anyone to speak to J.H. about finances or estate planning. Ken further stated Martha and Louise “used their position to misinform and influence J.H. Boyd into believing that he was financially destitute, that I was the reason for his state of poverty and that I was not going to repay his Note.” Finally, Ken claimed Martha and Louise “used isolation, verbal abuse and undue influence to cause J.H. Boyd to sell his assets and the $2.5 Million Note at a reduced price in return for a promissory note that was unsecured.”

E. Respondents’ Reply Papers
F.
In reply, respondents argued appellants failed to meet their burden of producing admissible evidence to create a triable issue of fact. A hearing on JHBE’s summary judgment motion on the amended complaint was held on October 4, 2016, and the trial court issued an order granting the motion on October 11, 2016. Respondents asked the trial court to take judicial notice of that order.

In granting summary judgment to JHBE, the trial court found JHBE prevailed on its claim for breach of the note, as JHBE established the Boyd Trust breached the note and the only defense raised, namely, the alleged “oral extension agreement,” was barred by the parol evidence rule. The court concluded the note was an integrated contract, as it appeared to be a complete written agreement, and the alleged oral agreement, which predated the note’s execution, contradicted the specific payment deadline found in the note and the written amendments, and was more in the nature of prior negotiations, which was superseded by the execution of the written contract. In light of this conclusion, the court found in JHBE’s favor on its claim for judicial foreclosure and decreed that judicial foreclosure of the property could proceed.

JHBE argued this ruling barred the first four causes of action alleged in the FACC under the principals of res judicata or collateral estoppel, as all of those causes of action relied on the claim there was an enforceable oral agreement between the Boyd Trust and JHBE. JHBE further argued the alleged oral agreement was not an option agreement, but rather was inadmissible under the parol evidence rule, as it contradicted the note’s terms.

As for the 10th through 16th causes of action, the individual cross-defendants asserted appellants did not submit any admissible evidence. They argued Ken’s declaration consisted of “merely a regurgitation of the allegations found in the FACC” and therefore could not create a triable issue of fact on these claims, as it was not based on Ken’s personal knowledge. The individual cross-defendants argued Ken’s declaration was inadmissible and without any evidence, and appellants failed to meet their burden of producing evidence to raise a triable issue of fact. Respondents filed detailed objections to Ken’s declaration, asserting Ken’s statements concerning the oral agreement were irrelevant based on the trial court’s October 11 ruling, and Ken’s statements about the individual cross-defendants’ actions were conclusory allegations for which he lacked any personal knowledge.

G. The Trial Court’s Ruling
H.
Following an October 27, 2016 hearing on the motion, the trial court took the matter under submission. On November 30, 2016, the trial court issued an order adopting its tentative ruling, in which it denied summary judgment, but granted summary adjudication as to the first five causes of action, and the 10th through 19th causes of action.

As to the first four causes of action, which pertained to the note and alleged oral agreement, the trial court found the motion was largely duplicative of JHBE’s summary judgment motion on the amended complaint, in which the trial court ruled in JHBE’s favor on its claim for breach of the note and found the oral agreement was unenforceable. Because the arguments and facts in the FACC’s breach of contract claim were the same as those in the prior motion, the trial court again determined the oral agreement was unenforceable and granted summary adjudication on that claim.

The trial court found the promissory estoppel claim was effectively moot because it granted summary adjudication in JHBE’s favor for breach of the note. In addition, since it found in its October 11 order that the alleged oral agreement appeared to be more in the nature of prior negotiations, which were superseded by the note’s execution, the promissory estoppel claim failed because estoppel cannot be based on preliminary discussions and negotiations.

The trial court granted summary adjudication on the breach of the implied covenant of good faith and fair dealing claim based on its prior finding that the oral agreement conflicted with the note’s terms, as the implied covenant is limited to assuring compliance with the contract’s express terms. Finally, the trial court found the claim for interference with the oral agreement was not viable because the oral agreement was not enforceable. In addition, the individual cross-defendants, as agents of JHBE, were not strangers to the contract with no legitimate interest in it, and therefore they could not be liable for interference with the oral agreement.

With respect to the 11th through 16th causes of action, the trial court found the individual cross-defendants met their threshold burden as moving parties by denying they committed the acts the FACC alleged were wrongful, as they would have personal knowledge whether they committed those acts. The opposition, however, relied on the allegations in Ken’s declaration made on information and belief, which was inadequate to raise a triable issue of fact, as the party opposing summary judgment must produce admissible evidence raising a triable issue of fact and may not rely on allegations or denials in its pleadings, or evidence that gives rise to no more than mere speculation. For this reason, the trial court granted summary adjudication of the 11th through 16th causes of action.

VII. The Motion for Reconsideration
VIII.
Appellants subsequently filed a motion for reconsideration of the order granting summary adjudication as to the fifth and 10th through 16th causes of action pursuant to section 1008. Alternatively, appellants moved to set aside the order pursuant to section 473, subdivision (b). Appellants claimed the individual cross-defendants and their attorneys effectively delayed the production of medical and bank records related to J.H. and the JHB Trust, which prevented appellants from using those records in their opposition to respondents’ summary judgment motion. Appellants asserted that if the medical and bank records had been produced in a timely fashion, they would have possessed sufficient evidence to overcome the challenges to the fifth and 10th through 16th causes of action.

The motion was supported by declarations from appellants’ co-counsel, Allan R. Frumkin and Joseph Boyd. Frumkin declared that in order to support appellants’ allegations of undue influence, coercion, elder abuse, revocation of the trust, and Martha’s and Louise’s actions toward J.H., it was necessary to obtain medical records from facilities known to have treated J.H. and financial records related to the JHB Trust. To that end, his office subpoenaed J.H.’s medical records and JHB Trust’s bank records on July 21, 2016, with a production date of August 16, 2016.

After respondents objected to the subpoenas, Frumkin’s office issued revised subpoenas, which required production of the documents by September 6, 2016. The bank, however, refused to produce the documents due to respondents’ objections. Frumkin’s office sent a second set of revised subpoenas, with a production date of September 27, 2016, but respondents objected to them and the bank refused to respond based on those objections. Respondents withdrew their objections on September 28, 2016. From October 14 to November 12, 2016, emails were sent between the copy service and counsel for appellants and respondents to obtain the requested records. It was necessary to get an original authorization signed by Martha and J.H.’s death certificate before some facilities would release the records.

Four volumes of records from Community Regional Medical Center (CRMC) were copied by the custodian of records on October 27, 2016, and forwarded to the copy service on November 1, 2016. The records were immediately forwarded to appellants’ expert, David A. Roberts, Ph.D. The bank produced the banking records to the copy service on October 20, 2016, and Frumkin’s office received them on October 29, 2016, two days after the summary judgment hearing.

Frumkin and Boyd both declared the banking records showed monthly payments from JHBE to the JHB Trust ceased beginning in June 2014, with only interest being paid, which was contrary to Louise’s deposition testimony and evidenced the power Martha exerted over J.H. and the JHB Trust. Frumkin claimed the banking records reflected payments to 14 medical care providers, the majority of which were unknown to appellants and whose records needed to be subpoenaed and reviewed. Appellants anticipated these providers would support the allegations against respondents. Roberts reviewed the CRMC records and found notations that bore on J.H.’s mental status during a 2013 hospitalization and brief rehabilitation, which he listed in a November 9, 2016 letter to Frumkin. According to Roberts, the records stated that during that hospital stay, J.H. was disoriented and confused, and there was concern for his safety. Frumkin asserted Roberts’ “findings” supported appellants’ allegations that J.H. was susceptible to undue influence, coercion and manipulation, and raised triable issues of fact.

Frumkin declared appellants were diligent in attempting to obtain the medical and banking records, but respondents objected, obstructed and delayed in authorizing their release until after the deadline for filing appellants’ opposition to the summary judgment motion and the hearing on the motion. Frumkin further declared the information gained from these documents would have allowed for supporting declarations and created triable issues of fact that would have defeated summary adjudication.

Appellants argued the delayed production of the medical and bank records was a new fact that required reconsideration of the summary adjudication order. Citing Hollister v. Benzl (1999) 71 Cal.App.4th 582 (Hollister), appellants asserted that when a party requests documents in a timely manner, but the documents have not been produced until after the hearing of the relevant motion, it is proper to grant reconsideration if the documents contain relevant evidence. Appellants argued they were not to blame for the failure to include the medical and bank records in their opposition, as they did everything possible to expedite their production, and it appeared respondents objected to the subpoenas and delayed in providing documents so the records could not be used to oppose the summary judgment motion. Had the documents been timely provided, triable issues of fact would have been found.

Alternatively, appellants argued if the trial court determined it was their fault the records were not produced and submitted in opposition to the summary judgment motion, the trial court should set aside its ruling based on mistake, inadvertence, surprise, or excusable neglect. Appellants asserted they had no way of knowing what would be discovered in the financial and medical records until after they were received, as the records “could have been totally benign and lacking in credible evidence” to support their position, and they needed to review the documents “to glean the relevant evidence,” which they did as soon as they received the documents. Thus, any failure to present the evidence earlier must be considered mistake, inadvertence, surprise, or excusable neglect.

The individual cross-defendants opposed the motion, which was supported by the declaration of their attorney, Walter W. Whelan. Whelan declared appellants waited a year to subpoena any medical or bank records relating to J.H. As Frumkin acknowledged, the subpoenas his office sent out were revised twice because of errors identified by other parties or the bank. Whelan’s office objected to the final revised subpoenas because, among other things, appellants failed to give proper notice as required by section 1985.3, subdivision (b).

By September 25, 2016, Whelan learned from Frumkin and Boyd that appellants intended to use respondents’ “ ‘delay tactics’ ” as a basis for seeking a continuance of the November 2016 trial date. In an effort to preserve the November trial date, Whelan decided to abandon the objections and supply the records as expeditiously as possible. He instructed his clients to reach out to the healthcare providers and bank to sign the necessary releases and to supply the records immediately to appellants’ counsel. They did so on September 29 and 30, 2016, in the form of email attachments and discs hand delivered to appellants’ counsel.

Shortly thereafter, Frumkin informed Whelan appellants would seek formal production of the records from the healthcare providers and bank to confirm the records supplied were correct. Whelan said the individual cross-defendants cooperated with that effort as well. At no time did Frumkin or Boyd indicate the records they obtained directly from the healthcare providers or Westamerica Bank differed from the records supplied at the end of September 2016, two weeks in advance of appellants’ deadline to file their opposition to the summary judgment motion.

The individual cross-defendants argued the evidence appellants presented to justify reconsideration was not “new evidence” under section 1008, as appellants had the evidence in their possession two weeks before the deadline to file their opposition. As for appellants’ alternate basis for relief, it appeared appellants were claiming mistake or excusable neglect based on either their counsel’s failure to seek out the evidence earlier or to present the evidence to the court after receiving it at the end of September 2016. The individual cross-defendants argued this could not constitute excusable neglect, as the discretionary relief provision of section 473 does not apply to conduct falling below the standard of care. Finally, the inferences appellants claimed based on the bank statements were not reasonable and were speculative.

In reply, appellants asserted their attorneys had been diligent in requesting the records. Frumkin did not become involved in the case until July 18, 2016, and the initial subpoenas were issued that week. By that time, the parties had conducted over 52 hours of depositions and over 14,000 pages of documents had been produced, 12,000 of which “had been dumped” on Boyd by respondents, which was when Boyd “realized that the magnitude” of the case required him to associate Frumkin to assist him. Appellants argued the delays must fall on respondents due to the “continual roadblocks” they placed to prevent production of the documents. Moreover, other than the corrections to the name of the trust, appellants could not bear sole responsibility for the delays in obtaining the medical records, as appellants were at respondents’ mercy to obtain the death certificate and “HIPAA authorization” the facilities required.

The certified records, which consisted of 2,248 pages of medical records and 544 pages of banking records, were not obtained until after appellants’ opposition was due and the hearing took place. Of the previously unknown healthcare providers shown in the banking records, appellants subpoenaed records from seven of them. Due to the delay in obtaining the records, appellants were unable to reference the documents or include them in their opposition.

Appellants asserted they were justified in requiring certified records given the mistrust and rancor between the parties, as that was the only way to ensure the records were complete. Appellants admitted respondents attempted to provide records on a disc two weeks before the opposition was due, but claimed there was no way of knowing if the disc was “conveniently missing documents that were harmful” to respondents’ case. Appellants claimed they were justified in not accepting the disc, as (1) no foundation could be provided for the documents since respondents could not authenticate them and they were not obtained through an independent third party; (2) they could not be assured of the documents’ veracity, authenticity or completeness due to respondents’ demonstrated “proclivity to change evidence and testimony as it suited their needs in this litigation”; and (3) since respondents agreed to allow the documents to be produced directly from the healthcare providers and bank, appellants would have been required to compare the documents on the disc to the authenticated records once they were produced.

The trial court issued a tentative ruling to deny the motion. As to the motion for reconsideration, the trial court explained the case appellants relied on, Hollister, was distinguishable, as there the plaintiff, in opposing the defendant’s petition to compel arbitration, told the court of the defendant’s failure to comply with her discovery requests and asked the court to delay ruling on the petition until she received them. In contrast here, appellants possessed the relevant documents two weeks before the deadline to file their opposition to the summary judgment motion (albeit in a form that appellants could not then authenticate), but failed to bring the matter to the trial court’s attention. Even if appellants had not received the documents, they admitted in their moving papers they propounded the discovery “ ‘with the anticipation that the contents of these records would support [appellants’] allegations.’ ”

The trial court noted that section 437c, subdivision (h), provides a mechanism for this situation, which would have allowed appellants to request a brief continuance by the opposition deadline, yet they failed to make that request, instead opting to proceed without the subpoenaed records. Because the records were in counsel’s possession two weeks before the opposition deadline, the trial court could not consider them new or different facts of which counsel was unaware at the time the opposition was filed and appellants were unable to show they could not produce this evidence prior to the ruling on the summary judgment motion. Moreover, the trial court did not “consider the failure to request a continuance to include this evidence in the opposition to be excusable neglect (a concept that the moving papers fail to brief).”

At oral argument on the motion, Frumkin admitted that on September 26, 2016, respondents’ counsel gave him a disc and told him respondents were withdrawing their objections. Frumkin argued the disc was insufficient as he needed records obtained through an authorized document copy service so he had a certificate of complete records. Frumkin asserted the tentative ruling failed to address the alternative basis for the motion, namely, to set aside the order under section 473. Frumkin argued, at the very least, the court could find there was inadvertence in not raising some of this material in appellants’ opposition to the motion.

The trial court pointed to the statement in the tentative ruling that it could not consider the failure to request a continuance to be excusable neglect and asked Frumkin where he briefed that issue. Frumkin responded the inadvertence was not the failure to request a continuance, but rather was “not going into the whole issue about the disc versus the subpoenaed records, and the fact that the subpoenaed records were not available to us at the time that the Motion for Summary Judgment was heard.” Boyd then asked the trial court if it was asking where they briefed “about mistake, inadvertence, surprise or excusable neglect.” The trial court stated, “[a]s to the failure to request a continuance to include the evidence or indicate you needed different evidence.” Boyd responded they did that under a section of their brief.

Following argument, the trial court took the matter under submission. It subsequently issued an order adopting the tentative ruling as its order.

DISCUSSION

I. The Summary Judgment Motion
II.
A. Standard of Review
B.
We review the trial court’s order granting summary adjudication de novo. (Certain Underwriters at Lloyd’s of London v. Superior Court (2001) 24 Cal.4th 945, 972 (Certain Underwriters).) Summary adjudication is appropriate when the papers submitted show there is no triable issue of material fact and the moving party is entitled to adjudication as a matter of law. (§ 437c, subds. (c), (f)(1); Certain Underwriters, at p. 972.) The purpose of the law of summary judgment or summary adjudication is “to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).)

As moving cross-defendants, respondents had the initial burden to show the causes of action alleged against them were without merit by showing one or more elements of each cause of action cannot be established. (§ 437c, subd. (p)(2).) Once respondents met their initial burden, the burden shifted to appellants to produce evidence demonstrating the existence of a triable issue of material fact. (Ibid.; Aguilar, supra, 25 Cal.4th at p. 849.) If appellants were unable to do so, respondents were entitled to summary adjudication as a matter of law and the motion was properly granted. (Kincaid v. Kincaid (2011) 197 Cal.App.4th 75, 82.)

On appeal, our task is to independently determine whether a triable issue of material fact exists and whether the moving party is entitled to summary judgment or adjudication as a matter of law. (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1601.) “We independently review the parties’ papers supporting and opposing the motion, using the same method of analysis as the trial court. Essentially, we assume the role of the trial court and apply the same rules and standards.” (Kline v. Turner (2001) 87 Cal.App.4th 1369, 1373.) In so doing, we liberally construe the opposing party’s evidence, strictly construe the moving party’s evidence, and resolve all doubts in favor of the opposing party. (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64; Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.)

C. The Contract Claims against JHBE
D.
Notably, appellants do not address any of the grounds upon which summary adjudication was granted on the first four causes of action of the FACC. While they state in the introduction of their opening brief that the trial court “erroneously granted summary adjudication on the causes of action related to the $2.5 Million Loan by stating that the agreement was not enforceable,” they do not make any reasoned argument on this point under a separate heading with citations to authority. (Cal. Rules of Court, rule 8.204(a)(1)(B) [appellate briefs must “[s]tate each point under a separate heading or subheading summarizing the point, and support each point by argument and, if possible, by citation of authority”].)

“The purpose of requiring headings and coherent arguments in appellate briefs is ‘to lighten the labors of the appellate [courts] by requiring the litigants to present their cause systematically and so arranged that those upon whom the duty devolves of ascertaining the rule of law to apply may be advised, as they read, of the exact question under consideration, instead of being compelled to extricate it from the mass.’ ” (Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830, fn. 4.) Appellants have forfeited the argument by failing to raise it under a proper heading. (In re Mark B. (2007) 149 Cal.App.4th 61, 67, fn. 2; Heavenly Valley v. El Dorado County Bd. of Equalization (2000) 84 Cal.App.4th 1323, 1345, fn. 17 [“Each point in an appellate brief should appear under a separate heading, and we need not address contentions not properly briefed.”].) Moreover, the argument is unsupported by citation to legal authority, which also results in forfeiture. (Tellez v. Rich Voss Trucking, Inc. (2015) 240 Cal.App.4th 1052, 1066 [“When an appellant asserts a point but fails to support it with reasoned argument and citations to authority, we treat the point as forfeited.”].)

Rather than address the grounds upon which the trial court granted the motion, appellants assert that if the oral agreement is not enforceable, Ken has legal standing to maintain the first four contract claims under the doctrine of unjust enrichment. They assert JHBE has been unjustly enriched through the transactions that led to the oral agreement because J.H. and JHBE received a benefit, namely, the proceeds from the sale of the California property and not having to pay Ken’s commission on the sale, while Ken suffered detriment by postponing the sale of the Modoc property and waiving his commission. On that basis, they argue the trial court should have denied summary adjudication on the first four causes of action and Ken should be allowed to pursue damages suffered by JHBE’s unjust enrichment.

Appellants, however, never raised this contention in the trial court, and therefore it cannot be considered for the first time on appeal. “Though this court is bound to determine whether [JHBE] met [its] threshold summary judgment burden independently from the moving and opposing papers, we are not obligated to consider arguments or theories, including assertions as to deficiencies in [JHBE]’s evidence, that were not advanced by [appellants] in the trial court. ‘Generally, the rules relating to the scope of appellate review apply to appellate review of summary judgments. [Citation.] An argument or theory will … not be considered if it is raised for the first time on appeal. [Citation.] Specifically, in reviewing a summary judgment, the appellate court must consider only those facts before the trial court, disregarding any new allegations on appeal. [Citation.] Thus, possible theories that were not fully developed or factually presented to the trial court cannot create a “triable issue” on appeal.’ [Citation.] ‘A party is not permitted to change his position and adopt a new and different theory on appeal. To permit him to do so would not only be unfair to the trial court, but manifestly unjust to the opposing litigant.’ ” (DiCola v. White Brothers Performance Products, Inc. (2008) 158 Cal.App.4th 666, 676 (DiCola).) Since appellants did not argue in their opposition to respondents’ summary judgment motion, or at the hearing on the motion, that they could maintain a claim for unjust enrichment regardless of the enforceability of the oral agreement, they have forfeited this argument.

Moreover, as appellants point out in their reply brief, unjust enrichment is not a cause of action, but rather “is a basis for obtaining restitution based on quasi-contract or imposition of a constructive trust.” (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1490.) Appellants maintain they can recover restitution under their promissory estoppel claim. Even if true, the trial court found appellants’ promissory estoppel claim was without merit because the oral agreement was in the nature of preliminary negotiations superseded by the note’s execution and promissory estoppel may not be invoked to enforce preliminary negotiations or discussions between the parties. (See Garcia v. World Savings, FSB (2010) 183 Cal.App.4th 1031, 1044; National Dollar Stores, Ltd. v. Wagnon (1950) 97 Cal.App.2d 915, 919 [“Estoppel cannot be established from … preliminary discussions and negotiations.”].) Appellants do not challenge this finding, which disposes of their promissory estoppel claim.

More importantly, we rejected the same argument appellants make here in their prior appeal from the judgment entered on JHBE’s complaint. (J.H. Boyd Enterprises, supra, F074903, at pp. 15-17.) There, appellants argued there was a question of fact whether the parol evidence rule could be applied to bar the oral agreement because JHBE should be estopped from contending the oral agreement did not exist or was unenforceable since Ken relied on the oral agreement to his detriment, while J.H. accepted the benefits of Ken’s performance. We concluded the promissory estoppel claim failed because any promise to extend the note’s due date until the Modoc property was sold or developed was superseded by the subsequent note and its amendments, which provided for a specific due date, and it was not reasonable to rely on oral representations that contradicted the written note. (Ibid.)

We agree with JHBE that our prior decision on this issue is law of the case that precludes appellants’ reliance on promissory estoppel. The “law of the case” doctrine “generally precludes multiple appellate review of the same issue in a single case.” (Searle v. Allstate Life Ins. Co. (1985) 38 Cal.3d 425, 434.) Under the doctrine, “ ‘[t]he decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case.’ ” (Morohoshi v. Pacific Home (2004) 34 Cal.4th 482, 491.) “The law of the case must be adhered to both in the lower court and upon subsequent appeal. [Citation.] This is true even if the court that issued the opinion becomes convinced in a subsequent consideration that the former opinion is erroneous.” (Santa Clarita Organization for Planning the Environment v. County of Los Angeles (2007) 157 Cal.App.4th 149, 156.) Our determination that appellants could not maintain a promissory estoppel claim because the oral agreement was contrary to the written note, and therefore could not reasonably be relied upon, was a rule of law that was necessary to the determination of the prior appeal. Accordingly, we are bound to apply that rule in resolving this appeal and conclude appellants’ promissory estoppel claim is barred.

Appellants simply have failed to make any cognizable argument that the trial court erred in granting summary adjudication as to the first through fourth causes of action. JHBE asks us to either dismiss the appeal against it or affirm the trial court’s order as to these claims. Where an appellant in a civil action fails to articulate any pertinent or intelligible argument in an opening brief, we may deem the appeal abandoned and dismiss it. (In re Sade C. (1996) 13 Cal.4th 952, 994; Berger v. Godden (1985) 163 Cal.App.3d 1113, 1119.) As a matter of largesse, we decline to do so here. Instead, we affirm the trial court’s order granting summary adjudication on the first through fourth causes of action.

E. The Tort-Based Claims Against the Individual Cross-defendants
F.
Appellants contend the trial court erred in granting summary adjudication in the individual cross-defendants’ favor on the 10th through 16th causes of action because the summary judgment motion asked the trial court to weigh the facts and appellants presented sufficient evidence to create a triable issue of fact.

To establish that a cause of action has no merit, a defendant seeking summary judgment may present affirmative evidence negating, as a matter of law, an essential element of the plaintiff’s claim. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) To do this, “a moving defendant must present evidence which, if uncontradicted, would constitute a preponderance of evidence that an essential element of the plaintiff’s case cannot be established.” (Kids’ Universe v. In2Labs (2002) 95 Cal.App.4th 870, 879.)

In their motion, the individual cross-defendants argued appellants could not prove an essential element of the 10th through 16th causes of action because the individual cross-defendants did not do the acts alleged to be wrongful. In support, the individual cross-defendants provided their declarations, in which they denied making the statements or taking the actions alleged to be wrongful. Since whether they committed the alleged wrongful acts was within the individual cross-defendants’ personal knowledge, they satisfied their threshold burden as moving parties of showing appellants could not establish these claims.

Having met their initial burden of production to make a prima facie showing that there are no triable issues of material fact, the burden shifted to appellants to produce evidence to make a prima facie showing of a triable issue of material fact. (Aguilar, supra, 25 Cal.4th at p. 850.) The sole evidence appellants submitted was Ken’s declaration, in which he makes a series of conclusory statements, some of them made on information and belief, that the individual cross-defendants engaged in certain acts.

Appellants assert in their opening brief that Ken’s declaration contains sufficient evidence that is not based on information and belief to create a triable issue of fact regarding revocation of the most recent trust instrument. They point to the following statements in the declaration, in which Ken declares that Martha and Louise: (1) “prevented [J.H.] from providing gifts to family members as he historically did in the past”; (2) “obtained personal assets of J.H. Boyd for their own personal use”; (3) “verbally berated and harassed” J.H. when he questioned or disagreed with them; (4) “hired a caretaker that answered to them for continued employment” who, when a family member came to visit, “would contact Martha and/or Louise who would then come to J.H. Boyd’s house and monitor the conversation or ask the visitor to leave”; (5) did not allow J.H. to “have private conversations with me or other family members either in person or by telephone”; (6) “allowed no one to speak to J.H. Boyd about finances or estate planning”; (7) “used their position to misinform and influence J.H. Boyd into believing that he was financially destitute [and] that I was the reason for his state of poverty”; and (8) “used isolation, verbal abuse and undue influence” to force J.H. to sell his assets and the note.

Section 437c, subdivision (d), specifically mandates, “Supporting and opposing affidavits or declarations shall be made by a person on personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavits or declarations.” The element of personal knowledge “must be shown by facts set forth in the declaration, and not merely by conclusions. The matters alleged must be something about which the declarant has reason to know personally—as distinguished from matters of opinion or hearsay.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2019) ¶ 10:109, p. 10-46.) Accordingly, “[d]eclarations based on information and belief are insufficient to satisfy the burden of either the moving or opposing party on a motion for summary judgment or adjudication.” (Lopez v. University Partners (1997) 54 Cal.App.4th 1117, 1124.)

We recognize Ken’s declaration contains the statements “[i]f called upon to testify of the things declared herein, I could and would competently testify to the truthfulness thereof, except for those items declared on information and belief,” and “I declare, under penalty of perjury … the foregoing is true, except for those matters stated on information and belief, and as to those matters, I declare that I am informed and believe them to be true.” However, such form allegations are simply the declarant’s conclusion and standing alone are “not sufficient to show his or her competency if the facts stated are not matters as to which the declarant would presumably have knowledge.” (Weil & Brown, supra, ¶ 10:110, p. 10-47.)

This is particularly true when the declaration, such as the one in this case, is full of conclusory factual statements that do not reveal Ken’s personal knowledge of the matter. For example, how does Ken know that Martha and Louise prevented J.H. from providing gifts to family members (as opposed to J.H. deciding on his own to stop providing such gifts), obtained J.H.’s assets for their own personal use, verbally berated and harassed J.H. when he disagreed with them, had their hired caretaker contact them when family members came to visit, did not allow anyone to speak to J.H. about finances or estate planning, told J.H. he was destitute and Ken was the cause, or isolated and verbally abused J.H. to force him to sell the note. Instead, these are merely what Ken suspects is true, which is not admissible evidence. To successfully oppose summary judgment, a cross-complainant “shall not rely upon the allegations or denials of its pleadings … but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action ….” (§ 437c, subd. (p)(2).) Mere conclusions of law or fact are simply insufficient to satisfy the evidentiary requirements of the summary judgment statute. (Wiler v. Firestone Tire & Rubber Co. (1979) 95 Cal.App.3d 621, 626.)

Appellants assert for the first time in their reply brief that the individual cross-defendants’ “categorical denials … cannot be taken at face value” because evidence appellants submitted in support of the motion for reconsideration shows why J.H. believed he was without funds due to Ken, that J.H. was susceptible to undue influence, and that Martha and Louis stopped JHBE from making payments to the JHB Trust in breach of their fiduciary duties. As we have stated, we do not consider arguments raised for the first time in a reply brief. (Varjabedian, supra, 20 Cal.3d at p. 295, fn. 11.) Moreover, the evidence appellants contend creates an issue of fact was not before the trial court on the summary judgment motion, and therefore we cannot consider it. (DiCola, supra, 158 Cal.App.4th at p. 676.)

We conclude the individual cross-defendants satisfied their burden for summary adjudication of the 10th through 16th causes of action by providing evidence that they did not engage in the acts or make the statements alleged to constitute elder abuse, undue influence, misrepresentation, breach of fiduciary duty, conversion, or breach of duty owed to the JHB Trust. Other than Ken’s self-serving statements, there are no corroborating facts from which to infer the individual cross-defendants engaged in any of the alleged wrongful conduct. Therefore, the trial court did not err when it granted summary adjudication on the 10th through 16th causes of action.

III. The Motion for Reconsideration or to Set Aside the Order
IV.
Appellants moved for reconsideration under section 1008 or, alternatively, for relief under section 473, subdivision (b). The trial court denied both requests. We address each in turn.

A. Reconsideration Under Section 1008
B.
“After an order is granted by a court, any party affected by the order may seek reconsideration based upon a showing of new or different facts. [Citation.] The party seeking reconsideration must provide not just new evidence or different facts, but a satisfactory explanation for the failure to produce it at an earlier time.” (Glade v. Glade (1995) 38 Cal.App.4th 1441, 1457; New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212 (New York Times).) That is, “the information must be such that the moving party could not, with reasonable diligence, have discovered or produced it at the trial.” (New York Times, at pp. 212–213.) “[F]acts of which the party seeking reconsideration was aware at the time of the original ruling are not ‘new or different.’ ” (In re Marriage of Herr (2009) 174 Cal.App.4th 1463, 1468.) “A trial court’s ruling on a motion for reconsideration is reviewed under the abuse of discretion standard.” (Glade v. Glade, at p. 1457.)

The trial court found the documents appellants sought to introduce were not new evidence or different facts, as appellants possessed the relevant documents two weeks before their opposition was due, when the individual cross-defendants produced the disc. Appellants argue this is “an absolute red herring” as they could not have relied on the documents on the disc in opposing summary judgment since the documents were not verified and they could not lay a foundation for them.

Appellants miss the point. Even if unauthenticated, appellants possessed documents two weeks before their opposition was due which they anticipated would support their allegations. Appellants, however, failed to bring the matter to the trial court’s attention or request a continuance under section 437c, subdivision (h), instead opting to proceed without the subpoenaed records. (New York Times, supra, 135 Cal.App.4th at p. 215 [plaintiff who sought reconsideration of grant of summary judgment based on deposition transcripts that were not available at the time of the summary judgment hearing could have moved for a continuance under section 437c, subdivision (h)].) Moreover, the documents were readily available to appellants throughout the discovery process. (New York Times, at pp. 212‒213.) While appellants blame respondents for the delay in producing the documents, asserting they should not benefit from their unclean hands, appellants were the ones who failed to request the documents earlier or bring the matter to the trial court’s attention.

In this respect, their situation differs from the case appellants cite, Hollister. There, the appellate court held the trial court had the authority under section 1008 to reconsider its previous ruling granting a petition to compel arbitration where the plaintiff told the trial court in her opposition to the petition that a codefendant failed to comply with her discovery requests for documents and asked the trial court to delay ruling on the petition until she received them, even though she did not know their significance. (Hollister, supra, 71 Cal.App.4th at p. 585.)

In contrast here, given that appellants possessed the unauthenticated documents and were aware authenticated documents would soon be produced, which they anticipated would support their allegations, the trial court did not abuse its discretion in denying reconsideration because the documents were not new and different facts.

C. Section 473, Subdivision (b)
D.
Appellants argue that even if the trial court correctly denied the motion for reconsideration, it should have vacated its grant of summary adjudication under section 473, subdivision (b), based on their attorney’s mistake, inadvertence, surprise or excusable neglect in not requesting a continuance of the summary judgment hearing.

As the individual cross-defendants note, appellants did not make this argument below. In the trial court, appellants argued the excusable act was their attorney’s failure to produce the documents in opposition to the summary judgment motion. At oral argument on the reconsideration motion, Frumkin admitted the inadvertence at issue was not the failure to request a continuance and when the trial court asked where appellants briefed the failure to request a continuance, Boyd pointed to appellants’ brief, which does not mention such a failure. As we have already explained, we do not consider arguments raised for the first time on appeal. (DiCola, supra, 158 Cal.App.4th at p. 676.) By failing to raise this argument in the trial court, appellants have forfeited it.

Appellants argue in their reply brief the excusable act was the failure to include the documents from the disc in their opposition to the summary judgment motion. However, as we have stated, we do not consider arguments raised for the first time in a reply brief. (Varjabedian, supra, 20 Cal.3d at p. 295, fn. 11.) Moreover, a party’s neglect is excusable only if a reasonably prudent person in similar circumstances might have made the same error. (Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 276.) An attorney’s failure to timely make an argument is not “a mistake permitted to an untrained ‘reasonably prudent person’ within the meaning of section 473,” as advancing arguments is the very essence of an attorney’s professional responsibilities, and therefore cannot be the basis for relief under the discretionary relief provision of section 473. (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 684.) Here, Frumkin’s and Boyd’s declarations show they made a calculated decision not to include the documents from the disc in their opposition to the summary judgment motion and instead wait for the authenticated documents. This is not the type of mistake, inadvertence, surprise or excusable neglect that would have permitted the original order to be vacated.

DISPOSITION

The trial court’s November 30, 2016 order granting summary adjudication and February 2, 2017 order denying the motion for reconsideration are affirmed. JHBE’s motions to dismiss and for judicial notice are denied. Costs on appeal are awarded to respondents.

DE SANTOS, J.

WE CONCUR:

PEÑA, Acting P.J.

SMITH, J.