Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. CV042633
McAdams, J.
This appeal follows the grant of summary judgment. The sole issue presented is whether the trial court erred in denying appellant’s request to continue the summary judgment hearing. Finding no error, we affirm.
BACKGROUND
The parties to this appeal are Gary Newton (appellant) and Dani Lewin-Lazzeri and the Estate of David Lazzeri (respondents). The subject of this appeal is a summary judgment order entered in October 2007. A brief procedural history follows, gleaned from the sparse record on appeal.
As relevant to the issue before us, the record includes only the order granting summary judgment, the notice of entry of that order, and the reporter’s transcript of the hearing.
Pleadings
As stated in appellant’s opening brief, this case began in June 2006 when First American Title Company filed suit against him, alleging fraud and other claims. Represented by his then-counsel Carl Lindstrom, appellant cross-complained against respondents and against other cross-defendants, including National Funding Group (NFG) Financial, Inc., and real estate broker Paul Rossetti. Lindstrom substituted out as appellant’s attorney.
Summary Judgment Motion
The following procedural facts concerning the motion at issue in this appeal are gleaned from the November 2007 declaration of respondents’ attorney, submitted in connection with the subsequent attorney fee motion.
In July 2007, respondents filed their motion for summary judgment, or in the alternative for summary adjudication; they also served the motion and a corrected notice of motion on appellant’s then-attorney Andrew Bosque. No opposition was filed.
In September 2007, Bosque substituted out as appellant’s counsel and appellant substituted in. Acting in pro per, appellant requested a continuance of the hearing from respondents’ counsel just before his opposition was due. Respondents’ counsel declined the request.
Hearing on the Summary Judgment Motion
On October 4, 2007, the court heard the summary judgment motion.
Respondents were represented by their counsel. Though no substitution of counsel had been filed, attorney Elizabeth Shivell appeared for appellant.
After the court noted the lack of opposition to the summary judgment motion, Shivell explained: “Mr. Newton just retained me yesterday after consulting with me on Monday. He has asked me to appear to request a continuance so he can respond. He had previously had a substitution of attorney by Andrew Bosque. To my understanding, there was some issue as to Mr. Bosque’s health. I haven’t talked to him to confirm that, but that that [sic] was the reason for the change in counsel and the delay in response.”
Respondents’ counsel opposed the oral request for a continuance, characterizing it as “not in good faith,” as part of appellant’s pattern of becoming self-represented just before “major motions,” and as an attempt at “just extending the litigation further.”
Shivell responded: “Your Honor, What we are requesting is a one or two-week continuance so that we can simply respond.”
The court replied: “I appreciate that. However, this case has a certain history to it and I think it’s appropriate to rule at this time. I am going to grant the motion and I will sign an appropriate order.”
The court then signed the proposed order presented by respondents’ counsel, “with a minor modification.” The handwritten modification indicates that appellant did not appear, “although an attorney appeared on his behalf.” The court’s formal order granting summary judgment also states: “It is further ordered, adjudged, and decreed that Newton shall take nothing on his Cross-Complaint against [respondents], and that [respondents] shall recover from Newton their costs of suit recoverable under Code of Civil Procedure Section 1033.5.”
Subsequent Proceedings
According to the November 2007 declaration of respondents’ attorney, a week after the hearing, respondents’ counsel filed and served a memorandum of costs. Appellant did not move to tax or strike costs.
As further stated in that declaration, in November 2007, respondents’ counsel filed and served a motion for attorney fees. Opposition was due November 30th. On November 28th, respondents’ counsel was contacted by appellant’s current attorney, Theresia Sandhu. Sandhu identified herself as appellant’s new attorney; she advised respondents’ counsel of her intent to apply ex parte for an order continuing the hearing on the fee motion. Respondents’ counsel opposed the ex parte application for a continuance. The court denied the application on November 29th.
According to appellant’s opening brief, on December 13, 2007, the court granted respondents’ motion for attorney fees, awarding them more than $95,000.
Appeal from the Summary Judgment Order
On December 3, 2007, appellant filed a notice of appeal from the “Judgment after an order granting a summary judgment motion.” Appellant contends that the court erred in denying his request for a continuance of the hearing on the summary judgment motion.
DISCUSSION
Before turning to appellant’s contention, we first address several preliminary issues. Next, we summarize the general legal principles that govern our substantive analysis. Finally, we apply those principles to the case before us.
I. Preliminary Issues
A. The Record
As previously noted, the appellate record in this case is sparse.
Parties challenging a judgment or order are required to comply with the rules on appeal. Among other things, the appellant must provide an adequate record for review. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141.) In addition, appellants must support their factual contentions by citations to the record. (Cal. Rules of Court, rule 8.204(a)(1)(C).) As respondents point out, failure to comply with the rules on appeal risks forfeiture of the claimed error. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.) Other consequences may ensue as well: “A violation of the rules of court may result in the striking of the offending document, the waiver of the arguments made therein, the imposition of fines and/or the dismissal of the appeal.” (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768.)
In this case, we exercise our discretion to consider appellant’s contentions on the merits. (Del Real v. City of Riverside, supra, 95 Cal.App.4th at p. 768.)
B. Appealability
The appellate record contains an order granting summary judgment, but it does not include a separate judgment. Generally speaking, an order granting summary judgment is not appealable. (Sullivan v. Delta Air Lines, Inc. (1997) 15 Cal.4th 288, 307, fn. 10.) Here, however, “the trial court clearly intended to finally dispose of” appellant’s cross-complaint against respondents. (Swain v. California Casualty Ins. Co. (2002) 99 Cal.App.4th 1, 6.) As noted above, the formal order “adjudged and decreed” that appellant “shall take nothing on his Cross-Complaint” and that respondents “shall recover” their costs. “In the interests of justice and to avoid delay, we construe the order granting summary judgment as incorporating an appealable judgment, and the notice of appeal as appealing from such judgment.” (Levy v. Skywalker Sound (2003) 108 Cal.App.4th 753, 761, fn. 7.) We nevertheless warn counsel of our growing reluctance to “save” appeals in this fashion. (Cf. e.g., Shpiller v. Harry C’s Redlands (1993) 13 Cal.App.4th 1177, 1180.)
C. Scope of Appeal
1. Order Granting Summary Judgment
As indicated in appellant’s notice of appeal, he is challenging the judgment after the order granting summary judgment. According to his reply brief, however, “Appellant is not asking the Appeals Court to rule on any substantive issues.” He thus asserts that he “need not supply the Appeals Court with any record upon which … to review the summary judgment because Appellant is asking only that that case be remanded to the Trial court” to allow him to oppose summary judgment.
2. Order Granting Attorney Fees
As respondents point out, appellant has not filed a subsequent notice of appeal, either from the December 2007 order granting attorney fees or from the denial of his ex parte application to continue the hearing on respondents’ motion for fees. As a result, they contend, this court has “no jurisdiction to review that issue.”
In his reply brief, appellant states that he is not seeking review of the “merits” of the attorney fee award. But he does request an order from this court directing the trial court to “vacate its award of attorney’s fees” to respondents, “pending” new summary judgment and fee hearings.
Appellant’s challenge to the attorney fee hearing and award is beyond the purview of this appeal. Appellant could have prosecuted a direct appeal from the fee order: “An order awarding attorney fees is collateral to the main action and separately appealable.” (California Licensed Foresters Assn. v. State Bd. of Forestry (1994) 30 Cal.App.4th 562, 565, fn. 1.) Because appellant did not appeal the subsequent fee order, appellate review of that order is foreclosed. (Alioto Fish Co. v. Alioto (1994) 27 Cal.App.4th 1669, 1685 [no appellate review where “appellants failed to file timely notices of appeal with respect to these orders and they are now final”].)
We therefore limit our review to the trial court’s refusal to continue the summary judgment hearing held in October 2007.
II. Applicable Legal Principles Governing Continuances
A. In General
A motion for continuance is addressed to the sound discretion of the trial court. (People v. Courts (1985) 37 Cal.3d 784, 790; Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389, 1395.) There is “no right to a continuance as a matter of law.” (Mahoney v. Southland Mental Health Associates Medical Group (1990) 223 Cal.App.3d 167, 170 (Mahoney), internal quotation marks omitted.)
The trial court’s exercise of discretion is guided by California Rules of Court, rule 3.1332, which provides in pertinent part: “To ensure the prompt disposition of civil cases, the dates assigned for a trial are firm.” (Cal. Rules of Court, rule 3.1332(a).) “Although continuances of trials are disfavored, each request for a continuance must be considered on its own merits. The court may grant a continuance only upon an affirmative showing of good cause requiring the continuance.” (Id., rule 3.1332(c).) “Circumstances that may indicate good cause” are enumerated in the rule and include “unavailability of trial counsel because of death, illness, or other excusable circumstances” and “substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice.” (Id., rule 3.1332(c)(3), (4).) “In ruling on a motion or application for continuance, the court must consider all the facts and circumstances that are relevant to the determination.” (Id.,rule 3.1332 (d).) Additionally, on the question of “what constitutes good cause, guidance has been provided by the Standards of Judicial Administration adopted by the Judicial Council.” (County of San Bernardino v. Doria Mining & Engineering Corp. (1977) 72 Cal.App.3d 776, 779.) Under the general rule set forth in that standard, “ ‘the necessity for the continuance should have resulted from an emergency occurring after the trial setting conference that could not have been anticipated or avoided with reasonable diligence and cannot now be properly provided for other than by the granting of a continuance.’ ” (Lazarus v. Titmus (1998) 64 Cal.App.4th 1242, 1250, quoting Cal. Stds. Jud. Admin., § 9.)
The trial court’s decision to grant or deny a continuance will not be disturbed on appeal except on a clear showing that the court has abused its discretion. (Lazarus v. Titmus, supra, 64 Cal.App.4th at p. 1249.) “The burden is on appellant to show an abuse of discretion.” (White v. Rurup (1948) 88 Cal.App.2d 692, 694.) The appellant must also demonstrate that the abuse of discretion resulted in a miscarriage of justice. (Mahoney, supra, 223 Cal.App.3d at p. 170.)
B. Summary Judgment
As we explain below, in the summary judgment context, the extent of the trial court’s discretion depends on whether the party seeking a continuance has met the statutory requirements. If so, the summary judgment statute effectively directs the court to grant a continuance. (Code Civ. Proc., § 437c, subd. (h); Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 395.) If not, the grant or denial of a continuance remains discretionary. (Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 716.)
1. Circumstances Where Continuance Is Mandatory
As articulated in case law, Code of Civil Procedure section 437c, subdivision (h), makes “continuances—which are normally a matter within the broad discretion of trial courts—virtually mandated” if the moving party has complied with the requirements of that subdivision. (Bahl v. Bank of America, supra,89 Cal.App.4th at p. 395; see also, e.g., New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 215.) As stated in that statutory provision: “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.” (Code Civ. Proc., § 437c, subd. (h), italics added.)
“Judges are faced with opposing responsibilities when continuances for the hearing of summary judgment motions are sought. On the one hand, they are mandated by the Trial Court Delay Reduction Act (Gov. Code, § 68600 et seq.) to actively assume and maintain control over the pace of litigation. On the other hand, they must abide by the guiding principle of deciding cases on their merits rather than on procedural deficiencies.” (Bahl v. Bank of America, supra, 89 Cal.App.4th at p. 398.) “When the two policies collide head-on, the strong public policy favoring disposition on the merits outweighs the competing policy favoring judicial efficiency.” (Ibid.) “If the trial judge is faced with a situation in which a party opposing summary judgment may have shown minimal diligence, but the party is able to present an affidavit showing facts essential to justify opposition may exist and explaining why they cannot then be presented, the judge must consider other ways of handling the lack of diligence short of summary judgment.” (Id. at p. 399.) This serves to mitigate summary judgment’s harshness. (Id. at p. 395; accord, Knapp v. Doherty (2004) 123 Cal.App.4th 76, 100-101.)
2. Circumstances Where Continuance Is Discretionary
“Continuance of a summary judgment hearing is not mandatory, however, when no affidavit is submitted or when the submitted affidavit fails to make the necessary showing under section 437c, subdivision (h).” (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 254.) Thus, even in the summary judgment context, the “party seeking the continuance must justify the need, by detailing both the particular essential facts that may exist and the specific reasons why they cannot then be presented.” (Lerma v. County of Orange, supra, 120 Cal.App.4th at p. 716.)
“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 therefor. That determination is within the court’s discretion.” (Lerma v. County of Orange, supra, 120 Cal.App.4th at p. 716, citing Mahoney, supra, 223 Cal.App.3d at pp. 170-172.) In other words, “in the absence of an affidavit that requires a continuance under section 437c, subdivision (h), we review the trial court’s denial of appellant’s request for a continuance for abuse of discretion.” (Cooksey v. Alexakis, supra, 123 Cal.App.4th at p. 254.)
III. Analysis
As we now explain, this record provides no basis for reversing the order denying the requested continuance. Because appellant did not comply with the statutory requirements, the trial court was not compelled to grant a continuance. The decision thus was a discretionary one, and there was no abuse of the court’s discretion here.
A. No Basis for a Mandatory Continuance
This is not a case in which the summary judgment statute mandated the grant of a continuance. The statute directs the court to grant a continuance only when “affidavits” show that “facts essential to justify opposition may exist but cannot, for reasons stated, then be presented” to the court. (Code Civ. Proc., § 437c, subd. (h).)
Here, appellant filed no affidavit or declaration demonstrating statutory grounds for a continuance; nor were such grounds proffered orally by Shivell, the attorney who appeared for appellant at the hearing. (See Mahoney, supra, 223 Cal.App.3d at p. 170 [no declaration and no oral indication of grounds].) Shivell offered no suggestion – much less any evidence – that a continuance was necessary “to obtain facts essential to justify opposition.” (Fisher v. Gibson, supra, 90 Cal.App.4th at p. 283; see also, e.g., Danieley v. Goldmine Ski Associates, Inc. (1990) 218 Cal.App.3d 111, 128 [no declaration, thus no “predicate for granting a continuance”]; cf. Knapp v. Doherty, supra, 123 Cal.App.4th at p. 101 [declaration failed to satisfy statutory requirement].)
Under these circumstances, there was no showing that appellant’s “request for a continuance was founded upon a need to obtain additional facts concerning the case.” (Mahoney, supra, 223 Cal.App.3d at p. 170.) “Therefore, the granting of a continuance was not mandated” but instead “was within the discretion of the court.” (Ibid.; see also, e.g., Cooksey v. Alexakis, supra, 123 Cal.App.4th at p. 254.)
B. No Abuse of Discretion in Denying Continuance
On this record, we cannot agree with appellant that the trial court abused its discretion in refusing to continue the summary judgment hearing as requested. Several interrelated factors support that conclusion, including appellant’s noncompliance with the applicable procedural rules, his failure to demonstrate good cause, and his lack of diligence.
1. Noncompliance with Procedural Rules
As discussed above, appellant filed no declaration in support of his request for a continuance. “Although a trial court may excuse failure to comply with the requirement of a declaration in support of a motion for continuance [citations], the court is not required to do so.” (Mahoney, supra, 223 Cal.App.3d at p. 172.) To the contrary, in and of itself, a missing or inadequate declaration is sufficient grounds for denying a continuance: “Based on this deficiency alone, the trial court had the discretion to deny appellant’s request for a continuance, and such a denial was not an abuse of discretion.” (Cooksey v. Alexakis, supra, 123 Cal.App.4th at p. 255 [deficient declaration]; cf. Knapp v. Doherty, supra, 123 Cal.App.4th at p. 102 [proffered “information was clearly objectionable hearsay” and “did not furnish a legitimate basis … for continuance of the motion”].) Furthermore, appellant’s request for a continuance was untimely, having been made at the hearing itself. (Cooksey v. Alexakis, at p. 255; see also, e.g., Ambrose v. Michelin North America, Inc. (2005) 134 Cal.App.4th 1350, 1353 [affirming the trial court’s denial of a continuance where the appellant “failed to request a continuance of the summary judgment motion hearing at any time prior to the hearing itself” and “failed to submit any affidavits whatsoever to justify a continuance”]; Roth v. Rhodes (1994) 25 Cal.App.4th 530, 547 [affirming the trial court’s denial of continuance where the appellant’s “declaration was untimely and insufficient”].)
2. Failure to Show Good Cause
As a general rule, the party seeking a continuance “must make a proper showing of good cause, in accordance with rule [3.1332] of the Rules of Court, standard 9 of the Standards of Judicial Administration, and the case law.” (County of San Bernardino v. Doria Mining & Engineering Corp., supra, 72 Cal.App.3d at p. 781.) As explained above, good cause may include “unavailability of trial counsel because of death, illness, or other excusable circumstances” and “substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice.” (Cal. Rules of Court, rule 3.1332(c)(3), (4).)
The requirement of good cause was not met here. At the hearing, attorney Shivell adverted to possible health problems of appellant’s prior attorney, advising the court of her “understanding” that “there was some issue as to Mr. Bosque’s health” and that “that was the reason for the change in counsel and the delay in response.” But Shivell also stated that she had not confirmed those problems. Nor did she offer any information about the severity or duration of Bosque’s illness. (See Mahoney, supra, 223 Cal.App.3d at p. 172 [where appellant’s counsel “became ill only one and one-half weeks prior to the hearing date” his illness did “not explain the delay in seeking a continuance”]; cf. Lerma v. County of Orange, supra, 120 Cal.App.4th at p. 713 [attorney’s timely declaration detailed his life-threatening illness and hospitalization].)
Appellant cites us to Bosque’s November 2007 declaration. Bosque’s declaration provides details about his illness. It also states that while he was attorney of record, his office never received notice of respondents’ summary judgment motion. But as respondents point out, that declaration was not before the court on October 4, 2007, when it denied appellant’s request for a continuance and granted respondents’ summary judgment motion. Bosque’s declaration thus cannot supply the required showing of good cause that is missing here.
3. Lack of Diligence
As one court recently observed, a “majority” of California courts hold “that lack of diligence may be a ground for denying a request for a continuance of a summary judgment motion hearing.” (Cooksey v. Alexakis, supra, 123 Cal.App.4th at p. 257.) This court is among that majority. (See Desaigoudar v. Meyercord (2003) 108 Cal.App.4th 173, 190.) As we have explained: “Where a lack of diligence results in a party’s having insufficient information to know if facts essential to justify opposition may exist, and the party is therefore unable to provide the requisite affidavit under Code of Civil Procedure section 437c, subdivision (h), the trial judge may deny the request for continuance of the motion.” (Ibid.)
In this case, there is no evidence that appellant acted with diligence in responding to the motion. (Desaigoudar v. Meyercord, supra, 108 Cal.App.4th at p. 191 [there was “no indication in the record that plaintiffs ever attempted, either formally or informally, to obtain [the necessary] information”]; Wachs v. Curry (1993) 13 Cal.App.4th 616, 624 [there was no showing why opponent’s evidence “could not have been obtained in the three months between … filing of the motion for summary judgment and the hearing”].) At the hearing, Shivell advised the court that appellant had retained her just the day before, and she gave “Bosque’s health” as “the reason for the … delay in response.” With only that meager showing before it, the trial court did not abuse its discretion in refusing to continue the hearing.
DISPOSITION
Treating the October 2007 order as a judgment, we affirm.
WE CONCUR: Mihara, Acting P.J., Duffy, J.
In addition, the abbreviated clerk’s transcript includes documents related to respondents’ later motion for attorney fees. To the extent that those subsequent documents shed light on the procedural history of this case, we rely on them in recounting that history. But as respondents point out, as a general rule, it is improper for this court to consider evidence that was not before the trial court when it made its ruling. (See, e.g, Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184, fn. 1; Fisher v. Gibson (2001) 90 Cal.App.4th 275, 282; id. at p. 286, fn. 4.)
Appellant also makes certain unsupported representations in his appellate briefs concerning the facts of this case. To the extent that those representations illuminate the procedural history of this case, we incorporate them in our background discussion. We will not rely on them in considering the merits of this case, however. (Cf. Davenport v. Blue Cross of California (1997) 52 Cal.App.4th 435, 444, fn. 4.)