Case Name: Marvin Morazan v. Janet Morazan-Aviles
Case No.: 1-12-CV-220779
Motion for Summary Judgment, or Alternatively, for Summary Adjudication to the Second Amended Complaint by Defendant Janet Morazan-Aviles
- Requests for Judicial Notice.
Defendant’s request for judicial notice is GRANTED. (See Evid. Code § 452, subd. (c), (d), (h); Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264 [court may take judicial notice of the existence and recordation of real property deeds]; see also Stepan v. Garcia (1974) 43 Cal.App.3d 497, 500 [the court may take judicial notice of its own file].)
Plaintiff’s request for judicial notice is GRANTED. (See Evid. Code § 452, subd. (d); Stepan v. Garcia, supra, 43 Cal.App.3d at p. 500 [the court may take judicial notice of its own file].)
- Violation of Stipulation/ Order.
As a preliminary matter, Plaintiff argues that Defendant filed the motion for summary judgment in violation of a court stipulation and order filed on December 24, 2013.[1] The stipulation provides that the parties would agree to mediate and attempt to settle the matter with Judge Jamie Jacobs-May as the mediator.[2] The stipulation and order goes on to state the following:
“MOTIONS FOR SUMMARY JUDGMENT: No motions for summary judgment shall be filed prior to completion of mediation.”[3]
On February 7, 2014, Defense Counsel sent an email to Plaintiff’s attorney canceling the mediation.[4] Also, in Defendant’s case management statement for May 20, 2014, Defendant indicates that a mediation session has not yet been scheduled.[5] Even though mediation had not yet taken place, Defendant filed a motion for summary judgment on February 28, 2014, in violation of the court’s stipulation and order.
In reply, Defendant argues that participation in mediation is completely voluntary and does not constitute grounds for dismissal or continuance of the motion. In support, Defendant cites to Jeld-Wen, Inc. v. Sup. Ct. (2007) 146 Cal.App.4th 536, where the appellate court, citing Business and Professions Code section 467.7, stated that “unless the parties have agreed to a binding award, any party who voluntarily enters mediation may revoke its consent and withdraw from the dispute resolution process.” (Id. at p. 541.) However, this case is distinguishable from Jeld-Wen because it does not involve a trial court ordering the parties to mediation. Rather, the current action is a situation where the parties themselves stipulated and agreed to mediation before the filing of any summary judgment motion. Thus, Jeld-Wen is inapposite. Furthermore, there is no supplemental order in this record modifying the prior order that no summary judgment motion be filed until mediation has been completed. Thus, the court finds Defendant’s motion for summary judgment/adjudication premature until mediation has been completed.
The Court (Hon. Stoelker) reached this same conclusion in the tentative ruling issued on May 20, 2014. To the extent mediation has not occurred, Defendant’s motion for summary judgment/ adjudication is still premature.
- Plaintiff’s Request for Dismissal [Denial] and/or Further Continuance of Defendant’s Motion for Summary Judgment/ Adjudication.
Alternatively, Plaintiff seeks dismissal [denial] and/or continuance of the motion to conduct additional discovery. Code of Civil Procedure section 437c, subdivision (h) states, in pertinent part, that, “If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication or both that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make any other order as may be just.”
“To mitigate summary judgment’s harshness, the statute’s drafters included a provision making continuances—which are normally a matter within the broad discretion of trial courts—virtually mandated upon a good faith showing by affidavit that a continuance is needed to obtain facts essential to justify opposition to the motion.” (Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 395; internal punctuation omitted.) “A plaintiff generally cannot defeat a well-founded summary judgment motion without setting forth specific facts controverting the motion. An exception is made for an opposing party who has not had an opportunity to marshal the evidence, and a summary judgment motion will be denied or continued if the opposing party declares that ‘facts essential to justify opposition may exist but cannot, for reasons stated, then be presented.’ Upon such a declaration, the trial court’s discretion is strictly limited and a continuance may be mandated.” (Mary Morgan, Inc. v. Melzark (1996) 49 Cal.App.4th 765, 770.)
“The nonmoving party seeking a continuance must show: (1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain these facts. The trial court need not grant a continuance where the proposed discovery is focused on matters beyond the scope of the dispositive issues framed by the pleadings.” (Ace American Ins. Co. v. Walker (2004) 121 Cal.App.4th 1017, 1023.)
“When a continuance of a summary judgment motion is not mandatory, because of a failure to meet the requirements of Code of Civil Procedure section 437c, subdivision (h), the court must determine whether the party requesting the continuance has nonetheless established good cause therefore. That determination is within the court’s discretion.” (Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 716.)
Here, Defendant’s motion for summary judgment is primarily based on the argument that Plaintiff has no evidence to support his claims. According to the declaration of Plaintiff’s counsel, a continuance is necessary to obtain outstanding discovery that includes additional documents and a continuation of Defendant’s deposition.[6] The outstanding discovery appears relevant to Plaintiff’s claims that Defendant misappropriated their parents’ monies.[7] Plaintiff argues that Defendant has been not been cooperative in providing such discovery in this action. Furthermore, on May 1, 2014, Judge Manoukian signed a discovery order compelling Defendant to produce documents in response to a deposition notice and appear for further deposition within 30 days.[8]
In the further request for continuance, Plaintiff declares Defendant failed to comply with the May 1, 2004 discovery order prompting Plaintiff to bring a further motion to compel.[9] The court (Hon. Manoukian) heard and took Plaintiff’s motion to compel under submission on August 22, 2014.[10] Plaintiff directs the court’s attention to Judge Manoukian’s tentative ruling of that date which granted Plaintiff’s motion to compel.[11] In light of these events, Plaintiff contends the status of discovery has not changed since the court continued this hearing on May 20, 2014. Assuming Judge Manoukian adopts his tentative ruling, Plaintiff would need additional time beyond September 9, the hearing date for the present motion, to obtain the outstanding discovery and conduct Defendant’s deposition. Plaintiff has provided the court with good cause to continue Defendant’s motion for summary judgment/ adjudication.
CONCLUSION
Defendant’s request for judicial notice is GRANTED.
Plaintiff’s request for judicial notice is GRANTED.
Defendant’s motion for summary judgment, or in the alternative, summary adjudication is CONTINUED to: (1) allow the parties to participate in and complete mediation; and (2) allow Plaintiff to obtain the needed discovery.
[1] See Declaration of Paul Koenig at Exhibit 1.
[2] Ibid.
[3] Ibid.
[4] Id. at Exhibit 2.
[5] Id. at Exhibit 3.
[6] Id. at pp. 2-6; Exhibits 4 and 9.
[7] Ibid.
[8] Id. at Exhibit 9.
[9] See Further and Supplemental Declaration of Paul M. Koenig, etc., at ¶¶4 – 9.
[10] Id. at ¶10.
[11]Id. at Exh. 3.
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