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Martinez v. Bank Of America National Trust & Savings Association8/1/2000
are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain these facts." (Wachs v. Curry (1993) 13 Cal.App.4th 616, 623; see also Mary Morgan, Inc. v. Melzark (1996) 49 Cal.App.4th 765, 770-771.)
To be entitled to a continuance because of the need for further discovery, a plaintiff bears the burden of showing that the proposed discovery would lead to the production of controverting evidence on facts essential to the opposition. (Scott v. CIBA Vision Corp. (1995) 38 Cal.App.4th 307, 326.) Where no such showing is made, denial of the request is not error. (Acuña v. Regents of University of California (1997) 56 Cal.App.4th 639, 648.)
On appeal, the Martinezes argue that the requested documents would reveal whether a Bank agent inspected the property before Gilberto Martinez's death. This inspection, they argue, would have shown the property's defects: that the Lindseys conducted a commercial construction business there in a residential neighborhood; that a pack of large dogs guarded the property; and that inadequate, unsecured fencing surrounded the property, allowing the public to enter or exit the property. Plaintiff's attorney's declaration accompanying the opposition to the summary judgment motion in the trial court, however, did not provide this explanation for the requested continuance. This court's review is limited to the facts presented in documents submitted to the trial court. (Monteleone v. Allstate Ins. Co. (1996) 51 Cal.App.4th 509, 514-515.)
Thus the attorney's declaration did not show that the facts to be obtained were essential to opposing the motion, the first Wachs requirement. That declaration, moreover, made no showing of any reason to believe such facts might exist, and thus did not satisfy the second Wachs requirement. The declaration merely requested the opportunity to take depositions of witnesses and propound follow-up discovery "to learn facts that may exist, so as to present these facts in opposition to Bank's motion. [ ] Martinez cannot presently determine the identity of persons who should be deposed or what other discovery is necessary until Martinez have had a reasonable opportunity to review Bank's supplemental discovery responses to interrogatories (set two), demand to inspect (set one) and requests for admission (set one)." "A continuance merely upon the assertion of one of the parties that he feels that he might be able to discover evidence favorable to him is not a matter of right. It is a matter which is left to the sound discretion of the trial court, and the appellate courts will not interfere with the exercise of that discretion except upon a clear showing that it has been abused." (Wiler v. Firestone Tire & Rubber Co. (1979) 95 Cal.App.3d 621, 628.)
Under Wachs v. Curry, the granting of a continuance was not mandatory. Under Scott, Acuña, and Wiler, no error or abuse of discretion arose from the denial of the request for a continuance.
2. The Claim That the Bank Delayed Obtaining Possession of the Property Does Not Constitute a Basis for Finding Error in the Denial of a Continuance
The Martinezes also claim that the Bank delayed obtaining possession of the South Chester Avenue property. They argue that after obtaining title on April 24, 1995, the Bank did not post its three-day notice until May 10, 1995; that the Bank did not serve its unlawful detainer action until May 17, 1995; that if it had filed its unlawful detainer on the earliest possible day, April 27, 1995, the Bank could have expected defendants' answer or have taken the Lindseys' default on May 3, 1995, and if the Lindseys answered, trial would
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