Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment and postjudgment order of the Superior Court of Los Angeles County, Ct. No. SC099232 Elizabeth A. Grimes, Judge.
Horvitz & Levy, Frederic D. Cohen, Lisa Perrochet; Rintala, Fraser & Jaenicke, J. Larson Jaenicke, AnnMarie DeVita; Richard L. Hasen, for Plaintiffs and Appellants.
Sauer & Wagner, Gerald L. Sauer and Lori L. Werderitch for Defendants and Respondents.
MOSK, J.
INTRODUCTION
Plaintiffs and appellants Howard Entertainment, Inc. and Scott Howard (together Howard) appeal from a summary judgment in favor of defendants and respondents Lisa Kudrow and Big Fouche Productions, Inc. (together Kudrow). Howard also appeals from an order denying his motion for relief under Code of Civil Procedure section 473.
All statutory citations are to the Code of Civil Procedure unless otherwise noted.
Howard contends that a triable issue of material fact precluded summary judgment, the trial court erred in excluding the conclusions and opinions in his expert’s declaration on the ground of lack of proper foundation, and the court erred in denying his request for a continuance of the motion hearing to submit a supplemental expert declaration. Howard also contends the trial court erred in denying his motion for relief from judgment pursuant to section 473. In that motion, Howard requested that he be permitted to file his proposed supplemental expert declaration that was attached to his concurrent motion for new trial, and requested reconsideration of the trial court’s ruling on Kudrow’s motion for summary judgment.
The trial court did not abuse its discretion by sustaining Kudrow’s objections to the expert’s declaration. The trial court, however, abused its discretion by not exercising its discretion in denying Howard’s request for a continuance, or it was not clear that the trial court exercised its discretion, which in itself is a basis to remand. Accordingly, we remand the matter to the trial court with directions to exercise its discretion to determine if Howard may have a continuance to file a supplemental expert declaration. We need not reach the issue of the propriety of the trial court’s order denying Howard’s motion for relief under Code of Civil Procedure section 473 or the issue concerning due process claims.
Pursuant to the applicable standard of review discussed below, we state the facts in the light most favorable to plaintiff as the party against whom summary judgment was entered. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.)
Kudrow began working in the entertainment industry in 1986. By 1991, she had performed in a play and an NBC pilot, had made several television appearances, had minor roles in several motion pictures, and had been a featured comedy theater performer. She had a manager for approximately one year, and also had an agent, and knew their different roles. She knew that agents were entitled to a commission on contracts they negotiated even if the agent-client arrangement was later terminated. Kudrow sought career advice from fellow actors and had consulted with an entertainment attorney on issues relating to her entertainment career.
From 1984 through 1989, Howard worked in the entertainment industry, including positions at Capitol Records, MGM, and The William Morris Agency (William Morris). He worked as an assistant and later a talent agent. In 1989, William Morris terminated Howard’s services.
In 1991, Howard partnered with Debbie Miller, his former supervisor at William Morris, and became a personal manager. At that time, the business of managing actors was a developing field in the entertainment industry. There were no known guidelines or standards. Howard did not have any experience as a personal manager and did not have any clients.
In 1991, Howard approached Kudrow about becoming her personal manager. Howard and Kudrow orally agreed that Howard would provide personal management services for Kudrow and in return receive a 10 percent commission on her income. Kudrow was one of the first clients Howard signed as a personal manager.
In 1992, Kudrow landed a guest-starring part on the popular show “Mad About You.” In 1993, she was cast in the recurring role of Ursula Buffay on “Mad About You, ” and in 1994, she was cast in her “career-making” or “break-out” role as Phoebe on the hit television series, “Friends.” From 1994 through 2004, new episodes of Friends were broadcast on prime-time national television. Kudrow became contractually entitled to, not only an amount of up to $1 million dollars per episode of Friends, but also 11/4 percent of the earnings or “backend”-earnings from the show, such as when it goes into syndication-of Friends as well as to “residuals”-payments to actors in television programs when those properties are rebroadcast or distributed in a new medium.
In 2000, the parties modified their oral agreement to provide that Howard’s entitlement to a 10 percent commission on residuals would apply only to the residuals earned on the first-run episodes of Friends. In 2004, the tenth and last year of Friends, Kudrow and Howard modified their oral agreement for the second and last time, decreasing Howard’s commission from 10 percent to 5 percent relating to Kudrow’s earnings for the final season of Friends. She was earning $1 million per episode for the final 18 episodes of Friends.
Kudrow terminated Howard’s management services as of early March 2007. During the meeting concerning this termination, neither Kudrow nor Howard discussed Howard’s compensation or how the termination would affect his compensation following termination.
Following Kudrow’s refusal of Howard’s demand for commissions after termination on Kudrow’s receipts for work she performed, or was obligated to perform, during the personal management relationship (e.g. for Friends), Howard filed a complaint against Kudrow alleging breach of contract, and seeking declaratory relief and an accounting. The complaint alleged that in 1991, the parties had entered into an oral agreement pursuant to which Howard would provide management services to Kudrow in exchange for a 10 percent commission on her earnings. Howard alleged that after Kudrow terminated Howard’s services, she breached their oral contract by failing to make commission payments for income she earned on work she performed or contracted to perform when Howard was still her manager. Howard further sought a declaration of those rights and an accounting of the relevant income.
Kudrow filed a motion for summary judgment contending that although there was an oral agreement pursuant to which Howard would receive commissions on Kudrow’s earnings, Howard could not establish that she breached the contract because there was no evidence that the parties agreed to post-termination compensation. Kudrow further contended that the causes of action for declaratory relief and an accounting were therefore moot.
Howard opposed the motion and submitted a declaration from his expert, Martin Bauer (Bauer declaration), stating that since at least the early 1980’s, it has been the custom and practice in the entertainment industry for a personal manager to be paid post-termination commissions on the services that their clients render or engagements that their clients entered into while the personal manager was representing them. Bauer opined that Howard was entitled to receive his commissions on all of Kudrow’s earnings derived from the services she rendered or engagements she entered into while Howard was her manager, even after Kudrow terminated Howard’s services in 2007.
Six calendar days before the summary judgment hearing, Kudrow filed objections to the statements set forth in the Bauer declaration on the grounds that they were mere conclusions and without a reasoned explanation connecting them to the facts of the case. At the hearing, the parties stated they had reviewed the trial court’s tentative ruling on the summary judgment motion and argued whether the Bauer declaration contained a sufficient foundation. The tentative ruling sustained the objections to the Bauer declaration and granted the summary judgment motion.
Before the trial court ruled on Kudrow’s objections, Howard requested a continuance of the hearing on the summary judgment motion to submit a revised declaration to provide what the trial court said was missing from the declaration. The trial court denied Howard’s request for a continuance, stating a continuance was not authorized under section 437(c) and “I can’t think of any reason why it would be in my discretion to do so.” The trial court further noted that Howard had not requested the continuance until after Kudrow objected in her reply papers that the Bauer declaration lacked foundation and he learned of the trial court’s adverse tentative ruling. The trial court sustained Kudrow’s evidentiary objections.
The trial court granted the summary judgment motion, but observed that had it “admitted the Bower [sic] declaration, there would have been a big fat material dispute at several different levels.” Thereafter, Howard moved for a new trial and filed a supplemental declaration from Bauer. Howard also moved for relief from default under section 473 and requested that the trial court reconsider the summary judgment in light of it. The trial court denied both motions.
DISCUSSION
A. Standards of Review
“We review the grant of summary judgment de novo. (Szadolci v. Hollywood Park Operating Co. (1993) 14 Cal.App.4th 16, 19 [17 Cal.Rptr.2d 356].) We make ‘an independent assessment of the correctness of the trial court’s ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law.’ (Iverson v. Muroc Unified School Dist. (1995) 32 Cal.App.4th 218, 222 [38 Cal.Rptr.2d 35].) A defendant moving for summary judgment meets its burden of showing that there is no merit to a cause of action by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) Once the defendant has made such a showing, the burden shifts back to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or as to a defense to the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849, 853 [107 Cal.Rptr.2d 841, 24 P.3d 493].)” (Moser v. Ratinoff (2003) 105 Cal.App.4th 1211, 1216-1217.)
“In performing our de novo review, we view the evidence in the light most favorable to plaintiffs as the losing parties. [Citation.] In this case, we liberally construe plaintiff’s evidentiary submissions and strictly scrutinize defendants’ own evidence, in order to resolve any evidentiary doubts or ambiguities in plaintiffs’ favor.” (Wiener v. Southcoast Childcare Centers, Inc., supra, 32 Cal.4th at p. 1142.)
Both parties initially asserted that a trial court’s rulings on evidentiary objections made in the context of summary judgment motions are reviewed for abuse of discretion. Thereafter, the Supreme Court decided Reid v. Google, Inc. (2010) 50 Cal.4th 512, 535 (Google) in which the court expressly left open the question of whether a de novo standard or an abuse of discretion standard applies to such evidentiary rulings. We therefore asked the parties to brief the issue.
Kudrow contends that with respect to summary judgment motions, a majority of courts have held that rulings on evidentiary objections should be reviewed for abuse of discretion. (See, e.g., Walker v. Countrywide Home Loans, Inc. (2002) 98 Cal.App.4th 1158, 1169.) Howard contends we should review the trial court’s evidentiary ruling de novo. He argues that under either standard the trial court’s ruling was incorrect, but the de novo standard should apply because it (1) recognizes that trial courts have no comparative advantage over appellate courts in making evidentiary rulings based solely on a paper record under applicable summary judgment standards, (2) comports with the general summary judgment requirement to resolve any doubts in favor of the non-moving party, and (3) imposes no significant cost in terms of judicial economy.
Most evidentiary rulings at the summary judgment level, such as whether proposed evidence constitutes inadmissible hearsay, are essentially determinations based upon the law. The trial court does not exercise discretion as to those evidentiary rulings, and, therefore, upon review on appeal there is no discretion to be analyzed for abuse. The trial court is not in a better position than the appellate court to determine whether an evidentiary ruling of law is correct. It is appropriate, therefore, to apply the de novo standard of review to such rulings. But whether an expert witness declaration provides sufficient foundational facts is one of those evidentiary issues that can be a matter within the sound discretion of a trial court. (See Maatuk v. Guttman (2009) 173 Cal.App.4th 1191, 1197 [“A trial court enjoys broad discretion in ruling on foundational matters on which expert testimony is to be based”].) Thus, in this case we review a trial court’s determination of such foundational evidentiary objections for abuse of discretion.
We also review the trial court’s denial of Howard’s request for a continuance of the summary judgment hearing for abuse of discretion. (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 254.) A trial court abuses its discretion when it exceeds the bounds of reason by making a determination that is arbitrary, capricious, or patently absurd. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)
B. Evidence of Custom and Practice May Be Relevant
Howard opposed Kudrow’s motion by submitting the Bauer declaration to show an industry custom and practice that Howard contends would support his claim for post-termination compensation under the parties’ oral agreement. Expert testimony is admissible to prove custom and practice in an industry. (PM Group, Inc. v. Stewart (2007) 154 Cal.App.4th 55, 63.) Custom and usage in the entertainment industry may become part of the oral agreement between the parties to explain whether Howard was entitled to receive post-termination compensation. “Usage or custom may be looked to, both to explain the meaning of language and to imply terms, where no contrary intent appears from the terms of the contract.” (1 Witkin, Summary of Cal. Law (10th ed. 2005) Contracts, § 755, p. 846.) The court in Ermolieff v. R.K.O. Radio Pictures (1942) 19 Cal.2d 543, 550 (Ermolieff), stated that “[t]he usage becomes a part of the contract in aid of its correct interpretation.” “[C]ustom and usage may be resorted to in an effort to supply [sic] a deficiency if it does not alter or vary the terms of the agreement.” (Addiego v. Hill (1965) 238 Cal.App.2d 842, 846.) “‘[A] reasonable usage may supply an omitted term or otherwise supplement an agreement.’” (Varni Bros. Corp. v. Wine World, Inc. (1995) 35 Cal.App.4th 880, 889 [quoting 1 Witkin, Summary of California Law (8th ed. 1987) Contracts, § 696, p. 630]; see also Civ. Code, § 1655.) Here, the custom and usage evidence was introduced to supply a meaning when the agreement contained a deficiency or to clarify an ambiguity. The oral agreement is either ambiguous because it is unclear if the percentage compensation on Kudrow’s earnings was to continue after termination of the representation or the agreement contains a deficiency by not dealing with that condition.
Custom and usage is considered “in determining the intent of the parties, and are in effect a part of the contract unless the contract manifests a contrary intention.” (Miller v. Germain Seed & Plant Co. (1924) 193 Cal. 62, 77 (Miller); accord Civ. Code, § 1655.) “[T]he usage evidence does not alter the contract of the parties, but on the contrary gives the effect to the words there used as intended by the parties.” (Ermolieff, supra, 19 Cal.2d at p. 550.)
“[A] party to a contract may be bound by a custom not inconsistent with the terms of the contract, even though he is ignorant of the custom, if that custom is of such general and universal application that he may be conclusively presumed to know of the custom.... [¶] The rule that a person will be presumed to have contracted with reference to a general custom or usage whether he knew of that custom or not has frequently been invoked.” (Miller, supra, 193 Cal. at p. 69, italics added.) Knowledge of the custom may be inferred from the fact that a party is engaged in the trade in which it is common. (Wise v. Stults (1956) 143 Cal.App.2d 592, 602.)
Here the parties entered into an oral agreement pursuant to which Howard would provide management services to Kudrow in exchange for a commission on her earnings. The parties did not discuss whether such compensation would continue after Kudrow terminated Howard’s services for income Kudrow earned based on work she performed or contracted to perform when Howard was still her manager. Such compensation by custom and usage may become part of the agreement. Even if the contract appears to be unambiguous on its face, extrinsic evidence is admissible to disclose a latent ambiguity. (Wolf v. Superior Court (2004) 114 Cal.App.4th 1343, 1351.) Evidence of custom and usage in the entertainment industry, even if Kudrow was unaware of that custom and usage, may therefore be relevant to explain or disclose an ambiguity in the agreement or provide by implication a missing term. Whether there is a custom and usage that applies to the contract is a question of fact. (See Heggblade-Marguleas-Tenneco, Inc. v. Sunshine Biscuit, Inc. (1976) 59 Cal.App.3d 948, 956.)
C. The Trial Court Did Not Abuse Its Discretion By Excluding Portions of the Bauer Declaration
In his declaration, Bauer stated, “As a result of my experience in the entertainment industry, I know the customs and practices in the entertainment industry. I am knowledgeable about the entertainment industry’s customs and practices for several reasons. First, my work and personal experiences as a business affairs executive, personal manager and agent have made me familiar with the entertainment industry and how it functions. Second, since 1974 I have dealt with actors, actresses, producers and directors as well as the personal managers, agents, and lawyers who represent them. Third, I have discussed extensively entertainment industry issues with those in the entertainment industry. Therefore, based on my extensive experience in the entertainment industry, I am familiar with its customs and practices, including how personal managers are compensated for their services.”
Mr. Bauer then testified to the following in his declaration regarding the custom and practice issue in this case: “With respect to personal or talent manager compensation, the custom and practice in the entertainment industry is that managers are paid their commissions on the services that their clients render or engagements that their clients enter into while the personal manager is representing them, no matter when the income from such services or engagements is received by the client. In other words, according to custom and practice, even if a personal manager is terminated by a client, the client continues to pay that personal manager that personal manager’s commission on the compensation received on engagements entered into or services rendered while the personal manager was rendering services to that client. If that were not the case, the client would be in a position to obtain lucrative employment relying upon his personal manager’s advice and efforts and then, after having obtained such employment, terminate the personal manager’s services and be free of any commission obligation. So according to custom and practice, Howard and his company, Howard Entertainment, Inc., are entitled to receive their 10% commission on Kudrow’s ‘Friends’ backend earnings even after Kudrow terminated Howard’s services in 2007. This is the case since Kudrow both rendered all of her services on ‘Friends’ and entered into all her contracts for ‘Friends’ while Howard was her personal manager. This has been the custom and practice in the entertainment industry since at least the early 1980’s to the present.”
The trial court sustained Kudrow’s objections to Bauer’s declaration; those objections were based on the grounds that it violated Evidence Code section 801, subdivision (b), and section 803, by being conclusory and not based upon reliable facts or data. The trial court, although concluding that Bauer was qualified to testify about industry custom and practice generally, said, “Mr. Bauer’s generalized statements of intimate knowledge of the entertainment industry and the single statement of why the custom and practice he described is fair and rational in his opinion are not sufficient to create a material issue of fact as to whether Howard and Kudrow impliedly agreed that Howard would receive post-termination commissions. Mr. Bauer provides no explanation of what a talent manager is or what services he provides to an actor that are different from those of, say, an agent, business manager or lawyer; how, when or why actors came to retain talent managers; how common it is for actors other than those on the cast of Friends to retain talent managers; what terms are typical in such relationships (e.g., percentage commission: 10%/15%/other, or flat fee; payment of post-termination commissions negotiable/always included/only included in some agreements); how they are negotiated; whether the agreements are typically oral or in writing; whether counsel is or is not ordinarily involved in negotiating the terms; or any other facts to indicate that payment of post-termination commissions was a well-known custom and practice in the entertainment industry during the years of Howard’s relationship with Kudrow. Since it is undisputed that Howard and Kudrow agreed their relationship could be terminated at any time without cause and the issue of post-termination commissions was never discussed between them, it is particularly necessary that Mr. Bauer provide facts to explain why any actor in Kudrow’s position would know and expect in 1991 that she was undertaking to pay Howard, who had never before served as a talent manager for any other actor, 10% commissions over Kudrow’s lifetime even after terminating Howard.”
Howard makes substantial arguments that the objections should have been overruled. According to Howard, the Bauer declaration should be liberally construed because it was submitted in support of his opposition to the motion for summary judgment. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768; Jennifer C. v. Los Angeles Unified School Dist. (2008) 168 Cal.App.4th 1320, 1332-1333.) Howard also argues there may be a distinction between expert witness testimony that states a fact, such as stating a particular custom and practice in the industry, and expert witness testimony that draws inferences from a set of facts, such as causation, and thus an expert’s experience in the industry alone is the only foundation necessary for the expert to state the existence of a custom and practice in that industry.
On the other hand, the trial court, in its discretion, can conclude that the declaration did not provide a reasonable basis for the expert’s opinion (Evid. Code, § 801, subd. (a)) because it did not contain facts to establish at the relevant times, the nature and extent of an expert’s experience such that the expert has knowledge of that specific custom and practice relevant to the case. (See, e.g. Alvarez v. State of California (1999) 79 Cal.App.4th 720, 725-726, 728-731 (Alvarez).) Bauer did not set forth how his general experience in the industry and general knowledge concerning its customs and practices qualified him to opine about the specific custom and practice of a personal manager’s entitlement to post-termination compensation and the application of it to the specific facts of this case.
None of the cases cited by Howard establishes that the trial court abused its discretion in this case. Wolf v. Superior Court, supra, 114 Cal.App.4th at p. 1357, dealt with relevance of the expert’s testimony. Conolley v. Bull (1968) 258 Cal.App.2d 183, 191, held that based on the expert’s qualifications, the expert could testify concerning the building of houses on a slope despite not having personal experience in doing so. In Alvarez, supra, 79 Cal.App.4th 720, the expert’s testimony included much more specificity concerning his expertise than in the Bauer declaration. In Fortune Dynamic, Inc. v. Victoria Secret Stores Brand Management, Inc. (9th Cir., Aug. 19, 2010, No. 08-56291) __ F.3d __ [2010 WL 3258703, 2010 Daily Jour. D.A.R. 13, 101] (Fortune Dynamic), the issue involved an alleged infringement of a trademark and a contention of a bad faith failure to investigate the use of the mark. The plaintiffs submitted an expert’s declaration that “‘[i]t is standard practice in the advertising and marketing industry... to perform at least a cursory search on the Internet and with the United State[s] Trademark Office to see what else is out in the market... to avoid possible conflicts or confusion.’” (Fortune Dynamic, supra, 2010 DJDAR at p. 13, 109.) The court held the district court was wrong for excluding this portion of the declaration stating “[The expert] has forty years of experience in the marketing and advertising industry, strongly suggesting that he is familiar with what companies within the industry do when placing words on a product. [The expert’s] expertise, then, is one based on experience.” (Ibid.)
By contrast, although the Bauer declaration provided that he worked in the entertainment business since 1974 as a business affairs executive and later as an agent, he did not become a personal manager until 1998, seven years after Howard and Kudrow entered into their personal manager oral agreement and a few years before modifications of the agreement. Although Bauer’s experience may make him knowledgeable generally regarding the customs and practices in the entertainment industry, the trial court concluded that he had not demonstrated familiarity with personal managers’ entitlement to post-termination commissions.
Howard also relies on an article by Edward J. Imwinkelried for his proposition that an expert’s experience in the industry alone is the only foundation necessary for an expert to state the existence of a custom and practice in that industry. Imwinkelried stated in other writings, however, that in order to testify about the trade usage or custom of a term or phrase, the witness must show involvement in a large number of “those” or “similar transactions.” (Imwinkelried, Expert Witness: Beyond “one size” (Aug. 28, 2000) National Law Journal, p. A18; Imwinkelried, Evidentiary Foundations (7th ed. 2008) § 9.03[3], p.387.) The Bauer declaration does not provide any testimony showing that Bauer was involved in a large number of transactions in which post-termination commissions were paid to personal managers. In addition, the trial court could also justifiably reject Bauer’s opinion that Howard is entitled to post-termination compensation because that is a dispositive legal conclusion and because Bauer does not deal with the specific facts of this case.
Imwinkelried, The Meaning of “Appropriate Validation” in Daubert v. Merrell Dow Pharmaceuticals, Inc., Interpreted in Light of the Broader Rationalist Tradition, Not the Narrow Scientific Tradition (2003) 30 Fla. St. U. L. Rev. 735.
D. The Trial Court Failed to Exercise Its Discretion in Denying Howard’s Request for a Continuance
Howard argues the summary judgment must be reversed because the trial court abused its discretion in failing to grant a continuance to allow him to file a supplemental expert declaration with sufficient foundation, that is to supply that which the trial court concluded were fatal omissions.
When the trial court’s tentative ruling indicated that the trial court would sustain Kudrow’s objections to Bauer’s declaration, Howard’s trial counsel requested a continuance to allow the filing of a supplemental declaration. The trial court stated, “I don’t think that Mr. Howard is entitled to, at this stage after he gets an adverse tentative ruling, seek a continuance. I mean, I don’t think 437(c) permits a defendant to ask the court on this record and these facts to continue the hearing.” From this statement, the trial court indicated it did not believe it had any discretion to provide a short continuance to allow the filing of a supplemental declaration to cure purported defects in the expert’s declaration. The trial court added, “I can’t think of any reason why it would be in my discretion to do so”-i.e. grant a continuance. This also suggests that the trial court believed it had no discretion. The trial court then said that when Kudrow filed her objections, that might have been the time to “come rushing in and offering a plausible reason why Bauer did not explain himself.” (Ibid.)
In addition, in denying Howard’s motion for new trial, the trial court further indicated that it did not believe it had any discretion to continue the summary judgment hearing. In denying Howard’s motion for new trial, the trial court determined that Howard was not entitled to a continuance under section 437c, subdivision (h) because Howard’s request was late “as no request for a continuance was made in [Howard’s] opposition to the motion... and [Howard’s] affidavits in support of its opposition did not state that evidence of the essential facts could not be presented at that time.” However, “[w]hen 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 therefor. That determination is within the court's discretion.” (Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 716 (Lerma), citing Mahoney v. Southland Mental Health Associates Medical Group (1990) 223 Cal.App.3d 167, 170-172; see Cooksey v. Alexakis, supra, 123 Cal.App.4th at pp. 253-254.) Also, “[i]t is... well established that courts have fundamental inherent equity, supervisory, and administrative powers, as well as inherent power to control litigation before them.” (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 967.) Every court has the inherent power “to provide for the orderly conduct of proceedings before it....” (§ 128, subd. (a)(3); see Rutherford v. Owens-Illinois, Inc., supra, 16 Cal.4th at p. 967.) Those powers “exist apart from any statutory authority.” (First State Ins. Co. v. Superior Court (2000) 79 Cal.App.4th 324, 333, quoting Asbestos Claims Facility v. Berry & Berry (1990) 219 Cal.App.3d 9, 19.) It does not appear that the trial court “determine[d] whether [Howard had] nonetheless established good cause” independent of section 437c, subdivision (h). (Lerma, supra, 120 Cal.App.4th at 716.) The trial court had the discretion to determine whether Howard had established good cause for the continuance, but it indicated it did not believe it had such discretion.
Trial courts have allowed a party whose expert declaration has been stricken to file a supplemental declaration. (Grenier v. City of Irwindale (1997) 57 Cal.App.4th 931 (Grenier); Miller v. Silver (1986) 181 Cal.App.3d 652 (Miller).) In Grenier, the defendant moved for summary judgment. In opposition the plaintiff submitted a one page expert declaration, in reply to which the defendant objected to plaintiff’s expert declaration as conclusory and without foundation. At the hearing the trial court indicated its intention to sustain the objection to the declaration and grant the summary judgment motion. The trial court, however, granted a short continuance for the plaintiff to file a supplemental declaration, and the defendant to file a supplemental reply declaration. (Grenier, supra, at pp. 937-938.)
In Miller, supra, 181 Cal.App.3d at pages 656-657, in opposition to a doctor’s summary judgment motion on a medical malpractice claim, the patient submitted a declaration of a non-expert declaration stating the patient consulted with a medical expert who allegedly stated that the doctor committed malpractice but that the patient would not be able to get an expert in their area to testify against him. In response, the doctor objected to the declaration as based on hearsay and lacking a foundation demonstrating that he was competent to testify as to the appropriate standard of care in a medical malpractice action. The trial court granted the patient a one-month continuance in order for her to obtain supplemental declarations. The patient thereafter submitted an expert declaration, to which the doctor again objected this time on the basis that it did not contain sufficient foundational facts. The trial court sustained the doctor’s objection and continued the hearing for ten days to allow the patient the opportunity to obtain a declaration of yet another expert with sufficient foundational facts.
In some cases, courts have said it was an abuse of discretion for a trial court to refuse to grant a continuance to allow a party defending a summary judgment to correct a deficiency such as failing to file a conforming separate statement under section 437c, subdivision (2). (Parkview Villas Assn., Inc. v. State Farm Fire and Casualty Co. (2005) 133 Cal.App.4th 1197 [deficient separate statement of facts]; Kalivas v. Barry Controls Corp. (1996) 49 Cal.App.4th 1152, 1161 [“An order based upon a curable procedural defect (such as the failure to file a separate statement), which effectively results in a judgment against a party, is an abuse of discretion”].)
The failure to file a proper separate statement is, in a sense, a defect similar to failing to file admissible evidence. (See Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1119-1120 [requirement that evidence be admissible].) Even if the defective declaration and procedural deficiencies are not equivalent, they have been treated in a similar fashion. The court in Oldcastle Precast, Inc. v. Lumbermens Mutual Casualty Co. (2009) 170 Cal.App.4th 554, 576 said, “‘Under Code of Civil Procedure section 437c, a party opposing summary judgment does not have an automatic right for a second chance to prepare a responsive separate statement or present evidence. Instead, the party must demonstrate a reason for the trial court to exercise its discretion. “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.” [Citation.] “However, Code of Civil Procedure section 437c mandates a continuance of a summary judgment hearing upon a good faith showing by affidavit that a continuance is needed to obtain facts essential to justify opposition to the motion.” [Citation.]’ (Lucas v. George T. R. Murai Farms, Inc. (1993) 15 Cal.App.4th 1578, 1586 [19 Cal.Rptr.2d 436].)” (See also Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 395 [continuance “’virtually mandated” when requested by a party opposing a summary judgment motion to obtain facts essential to opposition that could not then be presented].)
Here, there was no declaration filed in support of a continuance to obtain evidence, but counsel for Howard represented that the material that the court said was omitted and necessary, could be provided. The trial court indicated it believed it had no power to exercise its discretion. The failure to exercise discretion is in itself an abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847-848; People v. Crandell (1988) 46 Cal.3d 833, 861; Kim v. Euromotors West/The Auto Gallery (2007) 149 Cal.App.4th 170, 176.) Accordingly, the matter must be reversed and remanded to permit the trial court to exercise its discretion.
The trial judge is now a Court of Appeal justice. Thus, a new trial court judge must be assigned to this case.
Even if it is unclear if the trial court exercised its discretion, a reversal and remand are appropriate for the trial court to clarify whether discretion was exercised. (See People v. Austin (1981) 30 Cal.3d 155, 161 [“we cannot be reasonably assured that the trial court in fact exercised its discretion” and thus judgment reversed and remanded]; Donahue v. Donahue (2010) 182 Cal.App.4th 259, 268-269; Garcia v. Santana (2009) 174 Cal.App.4th 464, 477 [reversing because “we are unable to determine whether the court exercised its discretion”]; Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 149; see also Lerma, supra, 120 Cal.App.4th at p. 716; Cooksey v. Alexakis, supra, 123 Cal.App.4th at pp. 253-254 [discretion to grant continuance under Code of Civ. Proc, § 437c, subd. (h)].)
We do not agree with Howard that the trial court established a new rule regarding the admissibility of expert testimony on custom and usage. Rather, the trial court just exercised its discretion in sustaining an objection based on a lack of foundation. Nevertheless, there were compelling reasons for the trial court to have granted the continuance. There had been no previous continuance. The case had been pending for only one year. Howard received the objections shortly before the hearing. Howard’s attorney represented that the evidentiary deficiencies could be readily corrected. There is no indication that Kudrow would be prejudiced by the continuance. And the failure to grant the continuance meant that there would be a summary judgment against Howard on disputes involving millions of dollars.
Kudrow suggests even if Bauer had been able to submit a supplemental declaration curing any foundational deficiencies, there still would not be a triable issue of fact as to whether the parties knew of the custom and usage and agreed to post-termination commissions. If Bauer supplied the necessary foundation, arguably there would be a triable issue of fact as to whether the custom and usage was of such “general and universal application that [Kudrow] may be conclusively presumed to know of the custom.” (Miller v. Germain Seed & Plant Co., supra, 193 Cal. at p. 69.) Therefore, resolution of the effect of admissible custom and usage evidence cannot be determined in a summary judgment proceeding.
In view of our ruling, we need not address other issues raised by Howard.
DISPOSITION
The summary judgment is reversed and the matter is remanded to the trial court to exercise its discretion on whether to grant a continuance. No costs are awarded.
We concur: TURNER, P.J.ARMSTRONG, J.