49 Cal.App.5th 506
Cal. Ct. App.2020Background
- Plaintiffs Robert Insalaco and Leslie Lomax (the Insalacos) and cross-complainants Lucas Du and Mary Wong (the Du/Wongs) own adjacent hillside properties above Wilkie Creek; Hope Lutheran Church owns property across the creek with paved areas that drain into the creek via a discharge pipe.
- A February 2017 landslide rendered the Insalacos’ home uninhabitable and also damaged the Du/Wong property; plaintiffs allege Church runoff caused the creek level to rise and saturated the slope, contributing to the slide.
- Church moved for summary judgment supported by two retained experts (Raines, civil/geotechnical engineer; Ulrick, hydrogeologist) who inspected the sites and opined the Church’s runoff (from a 2.657-acre drainage area) was insignificant, entered the creek downstream of the Insalaco property, and did not cause erosion or a rise in groundwater that would destabilize the slope.
- The Insalacos sought an ex parte continuance under Code Civ. Proc. § 437c(h) for a site inspection before deposing the Church’s experts; the trial court denied the continuance, held a summary judgment hearing, and granted judgment for the Church against both the Insalacos and the Du/Wongs.
- On appeal the court reversed: (1) it held the denial of the Insalacos’ § 437c(h) continuance was an abuse of discretion because their attorney’s affidavit identified specific discovery (site mapping, outfall location, creek-bank inspection, water testing) that might disclose facts essential to oppose summary judgment; (2) it held summary judgment as to the Du/Wongs was improper because the Church’s separate statement contained purportedly undisputed material facts that the Du/Wongs had contested.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court abused its discretion by denying a § 437c(h) continuance to allow a site inspection and additional discovery before ruling on summary judgment | Insalaco: attorney affidavit identified specific facts that may exist and are essential (topographic mapping, exact outfall location, creek-bank erosion, water-testing); discovery open, no trial date, so continuance required | Church: plaintiffs were dilatory, should have sought inspection earlier; limited access offered and plaintiffs waited | Reversed as to Insalacos — denial abused discretion; § 437c(h) continuance was virtually mandated where affidavit specifies facts essential to opposition may exist; vacated judgment as to Insalacos |
| Whether summary judgment was proper as to Du/Wongs given disputes about material facts in Church’s separate statement | Du/Wongs: Church did not address effects on Du/Wong property; Church’s separate statement included conceded material facts (rainfall amount, creek overflow, bank erosion, outfall location/effect) that Du/Wongs disputed | Church: any disputes are immaterial; experts show Church contribution insignificant or downstream of Insalaco and thus not causal | Reversed as to Du/Wongs — trial court erred because there were disputes as to facts the moving party treated as undisputed and material; summary judgment improper |
Key Cases Cited
- Dee v. Vintage Petroleum Inc., 106 Cal.App.4th 30 (2003) (continuance virtually mandated where affidavit shows facts essential to opposition may exist)
- Frazee v. Seely, 95 Cal.App.4th 627 (2002) (same principle on continuance under § 437c(h))
- Scott v. CIBA Vision Corp., 38 Cal.App.4th 307 (1995) (purpose of § 437c(h) affidavit is to inform court of outstanding discovery necessary to resist summary judgment)
- Roth v. Rhodes, 25 Cal.App.4th 530 (1994) (statute requires party to show facts essential to justify opposition may exist)
- Bahl v. Bank of America, 89 Cal.App.4th 389 (2001) (limits on denying continuance when affidavit shows essential facts may exist but were not presented)
- Aguilar v. Atlantic Richfield Co., 25 Cal.4th 826 (2001) (defendant’s burden on summary judgment to negate an element or establish an affirmative defense)
- Saelzler v. Advanced Group 400, 25 Cal.4th 763 (2001) (standard of review for summary judgment; view evidence favorably to nonmoving party)
- Nazir v. United Airlines, Inc., 178 Cal.App.4th 243 (2009) (warning that facts in a moving party’s separate statement are effectively conceded as material and create a trap if disputed)