Thatcher v. Lucky Stores Inc.

MICHAEL THATCHER et al., Plaintiffs-Appellants, v. LUCKY STORES, INC., Defendant-Respondent.
No. E024929 (Super.Ct.No. VCV 011338) California Court of Appeal Fourth Appellate District Filed April 13, 2000
CERTIFIED FOR PARTIAL PUBLICATION*
        APPEAL from the Superior Court of San Bernardino County. Larry W. Allen, Judge. Affirmed.
        James S. Terrell for Plaintiffs and Appellants.
        Watten, Discoe & Bassett and Lisa J. McMains for Defendant and Respondent.
        Plaintiffs Michele Thatcher and Larry Thatcher appeal summary judgment entered against them and in favor of defendant Lucky Stores, Inc. Plaintiffs contend the trial court abused its discretion in denying their ex parte application for a continuance of defendant's summary judgment motion. Plaintiffs further argue that the trial court erred in granting summary judgment on the ground plaintiffs failed to file opposition, even though defendant had not met its initial burden of proof.
        We conclude defendant met its initial burden of proof, and due to plaintiffs' failure to file opposition, summary judgment was thus proper. We further conclude the trial court did not abuse its discretion in denying plaintiffs' continuance request. Plaintiffs had a history of dilatory prosecution of their action, failed to respond to defendant's extensive discovery, failed to file opposition to defendant's summary judgment motion, and delayed in bringing their ex parte application for a continuance until the day of the summary judgment motion hearing. Furthermore, the trial court was not required to continue the summary judgment motion under section 437c, subdivision (h), because plaintiffs' continuance request was not included in timely filed opposition to the summary judgment motion and plaintiffs failed to establish that facts essential to justifying opposition might exist but could not be presented prior to the hearing.

1. Facts and Procedural Background         On January 8, 1997, plaintiffs filed a personal injury complaint, and filed an amended complaint on March 9, 1998, alleging that on March 28, 1996, Michele Thatcher and her infant were accosted at gunpoint in a Lucky's grocery store parking lot. The gunman took money from Mrs. Thatcher's purse and threatened her life. Plaintiffs alleged that defendant was aware that other violent crimes had occurred in the store parking lot area, and that such activity constituted a dangerous condition and unreasonable risk of harm, of which Mrs. Thatcher was unaware. A month before the incident, Mrs. Thatcher allegedly was accosted in the same parking lot and notified three Lucky's store managers of the incident. Plaintiffs claimed that defendant negligently failed to take steps to make the parking lot safe or warn Mrs. Thatcher that the dangerous condition continued to exist. As a result of the most recent incident, plaintiffs allegedly suffered severe emotional distress, loss of earning capacity, and loss of consortium.
        Defendant filed an answer to the complaint on May 15, 1998, and served extensive discovery on plaintiffs. Plaintiffs did not respond to any of defendant's discovery. After the court granted several of defendant's discovery motions and plaintiffs' responses became overdue as to defendant's most recent set of discovery served on November 23, 1998, defendant filed a motion for summary judgment, as well as additional discovery motions. The court set defendant's summary judgment motion before the hearing on the discovery motions.
        Defendant argued in its summary judgment motion that plaintiffs did not have any evidence supporting their claims. Attached to the motion was defendant's attorney's supporting declaration stating that defendant had served plaintiffs with extensive discovery requesting plaintiffs to disclose and provide all evidence supporting their claims against defendant, and plaintiffs failed to respond. Plaintiffs also did not oppose defendant's summary judgment motion.
        On February 24, 1999, the day of the hearing on defendant's summary judgment motion, plaintiffs filed an ex parte application requesting the court to continue the summary judgment motion on the grounds plaintiffs' attorney had been ill and his investigators had not had an opportunity to investigate whether there had been violent crimes in the parking lot area where Mrs. Thatcher had been accosted. The trial court denied plaintiffs' continuance request and granted defendant's summary judgment motion on the sole ground that plaintiffs did not oppose defendant's summary judgment motion. Plaintiffs appeal summary judgment.


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2. Standard of Review         "'Summary judgment is proper only where there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. [Citation.] "To secure summary judgment, a moving defendant may prove an affirmative defense, disprove at least one essential element of the plaintiff's cause of action [citations] or show that an element of the cause of action cannot be established [citations]." [Citation.] "All doubts as to whether any material, triable issues of fact exist are to be resolved in favor of the party opposing summary judgment. [Citation.]" [Citation.] We review the record de novo to determine whether defendants met their burdens of proof. [Citation.]' [Citation.]" (Artiglio v. General Electric Co. (1998) 61 Cal.App.4th 830, 835.)

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3. Shifting the Burden of Proof         Plaintiffs argue the trial court erred in granting summary judgment based solely on the ground plaintiffs failed to file opposition. Plaintiffs assert that, even in the absence of opposition, the court must find that the moving party has met its initial burden of proof before granting summary judgment. Otherwise the court must deny the motion.
        The court order granting summary judgment states that the court granted the motion on the ground "plaintiffs failed to file any opposition or opposing separate statement of undisputed facts to the motion." The court's ruling is consistent with Superior Court of San Bernardino County, Local Rules, rule 592, ¹ which states: "Failure to serve and file written opposition may be deemed a waiver of any objections and an admission that the motion or demurrer is meritorious."
        Local rules are valid and have the force and effect of law only if they are not inconsistent with higher authority, such as statutes, state rules of court, and case law. (Code Civ. Proc., ² § 575.1, Gov. Code, § 68070; Mann v. Cracchiolo (1985) 38 Cal.3d 18, 29; Pacific Trends Lamp & Lighting Products, Inc. v. J. White, Inc. (1998) 65 Cal.App.4th 1131, 1135.)
        Local rule 592 conflicts with section 437c and case law which construes section 437c as requiring the moving party to meet its initial burden of proof before the court grants summary judgment, even in the absence of opposition.
        Subdivision (c) of section 437c provides: "The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. . . ."
        Subdivision (o)(2) of section 437c provides: "For purposes of motions for summary judgment and summary adjudication: [¶] . . . [¶] A defendant . . . has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto."
        While these provisions do not expressly state that the court is prohibited from granting summary judgment when the moving party has not met its initial burden of proof, to conclude otherwise would be contrary to the apparent intent of the statute and strong policy against disposing of cases on procedural deficiencies rather than trying cases on the merits. "When the statutory language is ambiguous, the court may examine the context in which the language appears, adopting the construction that best harmonizes the statute internally and with related statutes. [Citations.] '"Both the legislative history of the statute and the wider historical circumstances of its enactment may be considered in ascertaining the legislative intent."' (California Teachers Assn. v. Governing Bd. of Rialto Unified School Dist. (1997) 14 Cal.4th 627, 659.)" (Pacific Gas & Electric Co. v. County of Stanislaus (1997) 16 Cal.4th 1143, 1152.)
        In discussing the evolution of section 437c, the court in Villa v. McFerren (1995) 35 Cal.App.4th 733, stated: "[I]t was a well-established rule under the pre-January 1, 1993, versions of section 437c that unless the moving party meets its burden, summary judgment could not be ordered, even though the opposing party has not responded sufficiently or at all. Stated differently, in summary judgment litigation occurring prior to January 1, 1993, there was no obligation on the opposing party to show that a triable issue of material fact existed unless and until the moving party had met its burden. [Citations.] . . . Nothing in the language of the 1992 adoption of section 437c, subdivision (n)(2) amendments abrogates this well-established summary judgment requirement that the initial burden rests with the moving party. In fact, the express statutory language places the burden on the moving defendant or cross-defendant. Furthermore, we have carefully reviewed the legislative committee reports prepared in connection with the 1992 amendments to section 437c and there is no evidence of any legislative intent to modify the initial burden of proof which is allocated to the moving party. (See Union Bank v. Superior Court, supra, 31 Cal.App.4th at pp. 584-585.)" (Villa, supra, at pp. 743-744; see also FSR Brokerage, Inc. v. Superior Court (1995) 35 Cal.App.4th 69, 73, fn. 4.) ³
        While subdivision (b) of section 437c allows the court, in its discretion, to grant summary judgment if the opposing party fails to file a proper separate statement, this provision does not authorize doing so without first determining that the moving party has met its initial burden of proof.
        In Kulesa v. Castleberry (1996) 47 Cal.App.4th 103, 106, the court stated that a trial court must consider all of the papers submitted before exercising its discretion to grant a summary judgment based on the failure to file an adequate separate statement. The Kulesa court further concluded that, when "the most cursory review of all the papers shows the motion to be utterly without factual or legal merit, the court has no discretion to grant the summary judgment." (Id. at p. 113.) Hence, unless the moving party has met its initial burden of proof, the court does not have discretion under subdivision (b) of section 437c to grant summary judgment based on the opposing party's failure to file a proper separate statement.
        Based on the foregoing analysis, we conclude that local rule 592 is invalid as applied to summary judgment motions since it authorizes the court to grant summary judgment based solely on the absence of opposition, without a preliminary finding that the moving party has met its initial burden of proof. Such result conflicts with statutory law and case law construing section 437c, and hence renders local rule 592 void as applied to summary judgment motions. The lack of opposition in the instant case thus was an improper ground upon which to grant summary judgment, in the absence of a finding that defendant met its initial burden of proof.

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4. Meeting the Initial Burden of Proof         Plaintiffs argue that defendant did not meet its initial burden of proof. The only evidence provided in support of defendant's summary judgment motion is the declaration of defendant's attorney, Lisa J. McMains, which states that plaintiffs neither initiated any discovery nor provided any responses to defendant's discovery. According to McMains, defendant propounded extensive discovery on plaintiffs to discover if there was any evidence supporting plaintiffs' claims. The most recent discovery, served on November 23, 1998, consisted of eight sets of discovery, including requests for admission, form interrogatories, special interrogatories, and requests for production, directed to each plaintiff. The requests for admission, according to McMains, requested confirmation that plaintiffs had no evidence, facts, witnesses or documents supporting their claims. Plaintiffs' responses were due on December 18th and 28th of 1998. Despite numerous efforts to meet and confer on the outstanding discovery, plaintiffs had not provided any discovery responses as of the date of McMains's declaration, January 25, 1999.
        McMains's declaration further states that, on January 12, 1999, defendant filed motions to compel the outstanding discovery and to deem the requests for admissions admitted, but the first available hearing date was not until April 8, 1999, after the hearing on defendant's summary judgment motion. McMains noted in her declaration that defendant was forced twice before to compel plaintiffs to respond to discovery, and plaintiffs had not complied with the previous court orders.
        It appears from the court order granting summary judgment that the trial court did not consider whether defendant had met its initial burden of proof. The court order states that the motion was granted on the ground plaintiffs did not file opposition, with the portion of the order stating that defendant had met its initial burden of proof crossed out.
        Although the trial court improperly granted summary judgment without finding that defendant had met its initial burden of proof, such error does not necessarily require reversal. "[A]bsent a triable issue of material fact, we will affirm the grant of summary judgment 'if it is correct on any theory of law applicable to the case, including but not limited to the theory adopted by the trial court.'" (Zelda, Inc. v. Northland Ins. Co. (1997) 56 Cal.App.4th 1252, 1266, fn. 3.)
        Here, McMains's supporting declaration was sufficient to meet defendant's initial burden of establishing that plaintiffs did not have any evidence supporting their claims. Plaintiffs' failure to respond to any of defendant's extensive discovery requests supported a reasonable inference that plaintiffs did not have any evidence establishing liability.
        In Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, the court held that the plaintiff's discovery responses, which stated that plaintiff was not presently aware of any evidence supporting liability, were sufficient to meet the defendant's burden of proof and shift the burden of proof to the responding party. (Id. at pp. 578, 593; Villa v. McFerren, supra, 35 Cal.App.4th at p. 743, fn. 6.) The court in Union Bank stated: "a moving defendant may rely on factually devoid discovery responses to shift the burden of proof pursuant to section 437c, subdivision (o)(2). Once the burden shifts as a result of the factually devoid discovery responses, the plaintiff must set forth the specific facts which prove the existence of a triable issue of material fact." (Union Bank, supra, at p. 590.) A defendant can thus meet its initial burden of proof by showing that there is no evidence supporting the plaintiff's claims.
        Here, defendant met its initial burden by showing that when given numerous opportunities to provide discovery responses identifying evidence establishing liability, defendant repeatedly failed to provide any responses. Even after the court ordered plaintiffs to provide responses, and after defendant served plaintiffs with additional discovery, filed additional discovery motions, and filed a summary judgment motion, plaintiffs continued to fail to provide any responses, thus indicating that plaintiffs had no supporting evidence and their claims were meritless. Plaintiffs had an ongoing opportunity to serve discovery responses and provide supporting evidence, yet failed to do so. Even their ex parte application for a continuance indicated they had no supporting evidence and therefore wanted more time to search for evidence supporting their claims.
        We recognize that, unlike in Union Bank, here there were no discovery responses expressly denying the existence of supporting evidence. We conclude, however, that this is not fatal to defendant's summary judgment motion since a reasonable inference could be made from McMains's supporting declaration that plaintiffs' repeated failure to comply with defendant's discovery demands and failure to oppose defendant's summary judgment motion reflected that plaintiffs did not have any supporting evidence.
        Based upon the particular circumstances of this case, we conclude defendant met its initial burden of establishing that plaintiffs lacked evidence supporting their claims against defendant, and the burden of proof shifted to plaintiffs. By not opposing defendant's motion, plaintiffs failed to refute that there was no evidence supporting their claims. Summary judgment was thus proper on this ground.

5. Request For a Continuance         Plaintiffs contend that under section 594a the trial court abused its discretion in refusing to grant their request for a continuance of defendant's summary judgment motion for the purpose of conducting further investigation.
        On the day of the summary judgment motion, plaintiffs brought an ex parte application to continue the summary judgment motion. Plaintiffs requested in their ex parte application a continuance on the grounds their attorney, James S. Terrell, had been ill and Terrell's investigator had been involved in a criminal trial and therefore had not had time to conduct any investigation. The trial court denied plaintiffs' continuance request and then granted defendant's summary judgment motion.
        Section 594a provides: "The court may, of its own motion, postpone the trial, if at the time fixed for the trial the court is engaged in the trial of another action; or if, as provided in section 473 of this code, an amendment of the pleadings, or the allowance of time to make such amendment, or to plead, renders a postponement necessary." Plaintiffs' reliance on this provision is misplaced. The provision is inapplicable. There was no calendar conflict and no amendment or request to amend the pleadings.
        Plaintiffs do not argue on appeal entitlement to a continuance under Rules of Court, rule 375 or section 437c, subdivision (h), although plaintiffs cited section 437c, subdivision (h) in their ex parte application for a continuance. "Issues do not have a life of their own: if they are not raised or supported by argument or citation to authority, we consider the issues waived." (Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99.) "[A]n appellate court will generally decline to consider any questions not raised in the opening brief." (In re Ricky H. (1992) 10 Cal.App.4th 552, 562.) Nevertheless, in considering the issue, we conclude there was no abuse of discretion under section 437c, subdivision (h), or Rules of Court, rule 375.
        "'"'Generally, power to determine when a continuance should be granted is within the discretion of the court, and there is no right to a continuance as a matter of law. . . .'"' . . . An exception is created by Code of Civil Procedure section 437c, subdivision (h), which mandates that the court grant a continuance of a hearing on a motion for summary judgment '"'upon a good faith showing by affidavit that a continuance is needed to obtain facts essential to justify opposition to the motion.'" . . .' [¶] In determining whether the court below abused its discretion, a review of the standards governing requests for continuance of trial dates is instructive. California Rules of Court, rule 375, concerning motions and grounds for continuance of trial dates, provides that a motion for continuance shall be made on written notice to all other parties, . . . 'A continuance before or during trial shall not be granted except on an affirmative showing of good cause under the standards recommended in section 9 of the Standards of Judicial Administration.'" (Mahoney v. Southland Mental Health Associates Medical Group (1990) 223 Cal.App.3d 167, 170-171, italics & fn. omitted.)
        In Haskel, Inc. v. Superior Court (1995) 33 Cal.App.4th 963, the plaintiff moved for summary adjudication. A month before the motion hearing, the defendant filed an ex parte application requesting the motion be taken off calendar because the plaintiff had not yet responded to the defendant's discovery. The court granted the ex parte request, and the plaintiff filed a petition for writ relief. On appeal, the Haskel court noted that, "Even under section 437c, subdivision (h), a continuance could not be granted except upon a showing by affidavit, filed in opposition to the motion, that 'facts essential to justify opposition may exist but cannot, for reasons stated, then be presented . . . .' (Italics added.) No such showing was made; indeed, no opposition was filed. . . ." (Id. at p. 976.) The court further stated that, "Because there was no compliance with the response requirement of Code of Civil Procedure section 437c, subdivision (h), we do not consider the court's order [taking the motion off calendar] to be justified by the authority in section 437c, subdivision (h), to 'make any other order as may be just.'" (Id. at p. 976, fn. 11.) Here, also, plaintiffs did not timely file summary judgment opposition requesting a continuance and, therefore, were not entitled to a continuance under section 437c, subdivision (h). ⁴
        Plaintiffs also failed to establish that facts essential to justify opposition might exist but could not, for reasons stated, then be presented. (§ 437c, subd. (h).) In support of plaintiffs' ex parte continuance application, plaintiffs provided the declarations of their attorney, James S. Terrell, and his investigators, Virgil Carey and Joe Phillips. Carey stated in his declaration that he had been unable to conduct any investigation because he had been assisting with a criminal trial during the past three months (since November 1998). Carey failed to establish that he was incapable of conducting the necessary investigation simultaneously with his participation in the other trial.
        Investigator Phillips stated in his declaration that Terrell hired him to conduct investigation in the instant case and needed 30 days to complete the investigation. He did not state when he had been retained to conduct the investigation nor did he establish that any facts might exist, other than noting that he was aware of one crime occurring at the Lucky's premises in 1990, six years before the subject incident. While Phillips stated that there may have been other incidents as well, this was pure speculation, and the one incident in 1990 was not sufficient to establish liability.
        Terrell's supporting declaration stated that he retained Phillips to investigate the matter but does not say when. If he waited until a day or two before the hearing, the delay was unjustified. Terrell also stated in his declaration that he had been ill for approximately two months preceding the summary judgment hearing in February, and attached a letter from his doctor stating that Terrell "recently" had been chronically ill, and "has suffered a sinus infection, fatigue and exhaustion." While Terrell's health may have interfered with his ability to work, there was no evidence that he had been incapable of filing opposition to defendant's summary judgment motion, assisting plaintiffs with discovery responses, or retaining associate counsel to assist him.
        In FSR Brokerage, Inc. v. Superior Court, supra, 35 Cal.App.4th at p. 76, the plaintiffs requested a continuance of the defendant's summary judgment motion under section 437c, subdivision (h). The appellate court in FSR Brokerage concluded that the plaintiffs' supporting declaration did not justify granting a continuance: "[T]he foregoing declaration was insufficient to prove, pursuant to section 437c, subdivision (h), 'that facts essential to justify opposition may exist but cannot . . . then be presented . . . .' . . . [T]here was no reasonable basis for concluding that the facts essential to justify opposition could not be presented. The oldest of the consolidated actions was filed on December 10, 1992. The summary judgment motion was heard in the present case on October 14, 1994. There was an abundance of time between December 10, 1992, and the summary judgment hearing date in which to secure evidence pertinent to the duty issue. . . . Further, more than adequate time existed in order to secure discovery responses. Moreover, there was no justification for the failure to have commenced the use of appropriate discovery tools at an earlier date. Hence, denial of the summary judgment motion pursuant to section 437c, subdivision (h) was not warranted. [Citations.]" (FSR Brokerage, supra, at pp. 75-76.)
        Here, the record shows plaintiffs had ample time and incentive to investigate their claims and obtain supporting evidence. They filed their action in January 1997, two years before defendant filed its summary judgment motion. Furthermore, prior to filing the motion, defendant propounded extensive discovery on plaintiffs to determine whether plaintiffs had any evidence supporting their claims. Plaintiffs failed to provide any discovery responses, as well as failed to file any opposition to defendant's summary judgment motion. Plaintiffs further failed to justify their delay in bringing their ex parte continuance application until the day of the motion hearing. Having been dilatory in every respect, the trial court did not abuse its discretion in denying plaintiffs' continuance request.
        Furthermore, Terrell, Carey, and Phillip's declarations failed to establish that facts supporting plaintiffs' opposition existed but could not have been presented at the time of the motion hearing. While it was possible that other crimes may have occurred at the Lucky premises, the trial court was not required on the day of the summary judgment motion to grant a continuance to allow plaintiffs to go on a fishing expedition for evidence, particularly when plaintiffs had been dilatory in prosecuting their action, responding to discovery, and seeking a continuance. Accordingly, the trial court did not abuse its discretion in refusing to continue the summary judgment motion.

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6. Disposition         The judgment is affirmed. Defendant is awarded its costs on appeal.


We concur:
        RAMIREZ, P. J.
        RICHLI, J.




** Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts 2, 4, and 5.

¹          In this opinion, the term "local rule" shall refer to the Superior Court of San Bernardino County, Local Rules, unless otherwise indicated.

²          Unless otherwise noted, all statutory references are to the Code of Civil Procedure.

³          Citing numerous out-of-state decisions, the Villa court noted that "The rule that the moving party is not entitled to a summary judgment unless and until it meets its burden, regardless of whether any opposing evidence is presented, is also recognized under many state statutes." (Villa v. McFerren, supra, 35 Cal.App.4th at p. 746, fn. 7.)

⁴          Subdivision (h) of section 437c provides: "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."