Hagberg v. CA Fed. Bk.

Filed 3/5/02
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
LYDIA ORTIZ HAGBERG,
Plaintiff and Appellant,
v.
CALIFORNIA FEDERAL BANK FSB,
Defendant and Respondent.
B146368
(Los Angeles County
Super. Ct. No. BC216052)
APPEAL from the judgment of the Superior Court of Los Angeles County. David
L. Minning, Judge. Affirmed.
Vakili & Leus, Sa’id Vakili; Peter A. Zablotsky; and Honey Kessler Amado for
Plaintiff and Appellant.
Yocca Patch & Yocca, Mark W. Yocca, Paul Kim; Haight, Brown & Bonesteel
and Jules S. Zeman for Defendant and Respondent.
* * * * * *

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Appellant Lydia Hagberg appeals from a judgment entered after the trial court
granted summary judgment in favor of respondent California Federal Bank FSB on the
basis that the Civil Code section 47, subdivision (b)1 privilege applied to bar her
complaint. Although we greatly sympathize with appellant because of the humiliating
ordeal she experienced, case law and public policy dictate that the channels to the police
be kept open through the expedient of absolute privilege. Accordingly, we affirm.
CONTENTIONS
Appellant contends that: (1) the section 47, subdivision (b) privilege does not
apply to a cause of action alleging racial discrimination in violation of the Unruh Civil
Rights Act (§ 51 et seq.); (2) the section 47, subdivision (b) privilege does not shield
respondent from liability for violating the Unruh Civil Rights Act simply because a
police report is involved; (3) section 47, subdivision (b) extends a qualified, not absolute,
privilege to those who file police reports; and (4) the Annunzio-Wylie Anti-Money
Laundering Act does not confer immunity upon respondent.
FACTS AND PROCEDURAL BACKGROUND
On September 9, 1999, appellant, a dental assistant, filed a first amended
complaint against respondent and Primerica Financial Services (PFS)2 for damages for:
(1) violation of section 51; (2) violation of section 52.1; (3) false arrest/false
imprisonment; (4) slander; (5) invasion of privacy; (6) intentional infliction of emotional
distress; and (7) negligence. Appellant alleged that on May 7, 1999, she attempted to
cash a check issued by Smith Barney in the amount of $985.60 at respondent’s bank
branch in Pasadena, where she had opened a “VIP Direct Deposit” account several
months earlier. The teller requested approval to cash the check from her supervisor, who
1 All subsequent code section references are to the Civil Code unless otherwise
noted.
2 PFS and appellant entered into a settlement agreement, and PFS is not a party to
this appeal.

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summoned the police on the belief that the check was counterfeit. Two Pasadena police
officers approached appellant, took her purse, ordered her to spread her legs, and
handcuffed her. An employee of respondent told appellant that she looked like a
criminal. After searching and questioning appellant, the police contacted PFS, a division
of Smith Barney, which confirmed that the check was good. The police then released
her. The incident lasted 20 minutes.
In her deposition, appellant testified that the teller was Hispanic, and that Ms.
Nolene Showalter, the supervisor, was Caucasian. While appellant was waiting for her
check to be approved, the police came up behind her and lightly pulled her back from the
counter. When a second police officer patted her down and spread her legs apart,
appellant looked questioningly at the teller. The teller said appellant looked like a
criminal. No one employed by respondent mentioned appellant’s race or stated that they
had called the police because she was Hispanic. Her belief that she was discriminated
against because of race was based on the following: the bank was not in a Hispanic
community; she had a direct deposit account at the bank; she had identification; and she
was dressed professionally in dental scrubs.
According to the declaration of Ms. Nolene Showalter, assistant bank manager, the
teller assisting appellant requested approval from Ms. Showalter to cash the check. Ms.
Showalter believed that the check looked counterfeit because the microcoding line
appeared fuzzy and unclear, some printing appeared smudged, and part of the address
line was missing. She called Smith Barney, reaching “Gary,” a representative with PFS.
After she described the check, the account number, and the name of the payee on the
check, the representative indicated the check was counterfeit. Ms. Showalter telephoned
respondent’s corporate security office and spoke to regional security manager Gary
Wood, who told Ms. Showalter to call the police. Ms. Showalter called the Pasadena
Police Department, and while she was on the telephone, received a call back from Mr.
Wood who told her to cancel the call to the police. When Ms. Showalter told the police
dispatcher, who was still on the telephone, that she was canceling the call, the dispatcher
informed her that the police had already arrived at the branch. Ms. Showalter looked up

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and saw police officers walking toward appellant. Ms. Showalter walked over to the
teller window, reached over the desk to catch their attention, and told the police that she
had cancelled the call. The police, however, proceeded with the investigation and
detained appellant.
The transcribed conversation between Ms. Showalter and the Pasadena police
dispatcher shows that when asked what race appellant was, Ms. Showalter identified her
as “White -- well, maybe Hispanic; kind of reddish hair, short.”
A transcription of the conversation between Ms. Showalter and Mr. Gary Valadez
of PFS indicates that he told her that the funds in appellant’s account did not cover the
amount of the check, and that it was possible that the check was counterfeit. The
conversation ended as follows. “Gary Valadez: May I speak with her? [¶] CFB Rep: Is
this possible this is a counterfeit check, or no? It’s just an odd-looking check, which is
why I’m calling. [¶] Gary Valadez: One moment. [¶] (Pause.) [¶] CFB Rep: Okay.
[¶] Gary Valadez: Yep. [¶] CFB Rep: Yes? [¶] Gary Valadez: Uh-huh. [¶] CFB
Rep: Okay. I appreciate it. [¶] Gary Valadez: Okay. [¶] CFB Rep: Thank you.”
A transcription of the conversation between Gary Wood and “Bobbie” of PFS,
which occurred while Ms. Showalter was still on the telephone with the police dispatcher,
shows Mr. Wood stating that before he authorized any arrest, he wanted to verify the
information previously given by PFS that the check was counterfeit. Bobbie indicated
that the check had been issued to appellant and mailed to her via overnight express.
A transcription of a conversation between appellant and “Cecelia” of PFS, which
took place immediately after the handcuffing incident, shows that Cecelia reviewed Gary
Valadez’s notes of the telephone call between him and Ms. Showalter. The notes
indicated that he told Ms. Showalter that there were no funds in the account, and that
after Ms. Showalter hung up, he noticed there was a redeemable amount out of the
account. Cecelia advised appellant that it appeared that Ms. Showalter hung up before
Mr. Valadez had an opportunity to go into the history of the account.
A conversation between George Lazar, an employee of respondent, with Jeannette
Valasquez from PFS took place after the handcuffing incident. The transcription shows

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that when she was questioned as to why Mr. Valadez informed Ms. Showalter that the
check was counterfeit, Ms. Valasquez stated: “I don’t know, sir, why; because he noticed
the account but it just states -- he probably most likely looking into another account or
wasn’t looking good enough. He just saw the account value as zero value -- [¶] . . . [¶]
-- and stated from there that no, that check isn’t good.” Mr. Lazar indicated that he was
upset that a customer had been humiliated and wrongfully accused of trying to pass a
counterfeit check, characterizing the incident as a “very bad thing.” He also described
the check as looking like a Xerox copy, or as having been printed from a color laser
printer.
Respondent filed a motion for summary judgment on July 27, 2000.
On August 24, 2000, the trial court granted respondent’s motion for summary
judgment. This appeal followed.
DISCUSSION
1. Standard of Review
Summary judgment is granted if all the submitted papers 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. (Code Civ. Proc., § 437c, subd. (c).) A defendant seeking summary
judgment has met the 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 cannot be established or that
an affirmative defense to that cause of action exists. (Code Civ. Proc., § 437c, subd. (n);
see Rowe v. Superior Court (1993) 15 Cal.App.4th 1711, 1724.) Once the defendant’s
burden is met, the burden shifts to the plaintiff to show that a triable issue of fact exists as
to that cause of action. (Code Civ. Proc., § 437c, subd. (o).) The plaintiff must set forth
specific facts showing that a triable issue of material fact exists. (Ibid.)
In reviewing the propriety of a summary judgment, the appellate court
independently reviews the record that was before the trial court. (Chevron U.S.A., Inc. v.
Superior Court (1992) 4 Cal.App.4th 544, 548.) We must determine whether the facts, as
shown by the parties, give rise to a triable issue of material fact. (Walker v. Blue Cross of

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California (1992) 4 Cal.App.4th 985, 990.) In making this determination, the moving
party’s affidavits are strictly construed while those of the opposing party are liberally
construed. (Ibid.)
2. Whether the section 47, subdivision (b) privilege bars appellant’s causes of
action alleging racial discrimination in violation of the Unruh Civil Rights Act
According to section 47: “A privileged publication or broadcast is one made: [¶]
. . . [¶] (b) In any (1) legislative proceeding, (2) judicial proceeding, (3) in any other
official proceeding authorized by law, or (4) in the initiation or course of any other
proceeding authorized by law . . . .” Silberg v. Anderson (1990) 50 Cal.3d 205, 215-216
(Silberg), viewed as a landmark case, holds that the privilege is absolute, and applies
broadly to bar all tort actions, except for malicious prosecution, which are based upon a
protected communication.
In Beroiz v. Wahl (2000) 84 Cal.App.4th 485, 494-495 (Beroiz), Division Four of
this District addressed the issue of whether the absolute privilege of section 47,
subdivision (b) shields testimony or statements to officials conducting criminal
investigations. Division Four recognized that there is a split among California appellate
courts on this issue, with the majority of California cases following Williams v. Taylor
(1982) 129 Cal.App.3d 745 (Williams), which concluded that the absolute privilege
shielded the report to the police by a president of a car dealership on what he believed to
be criminal activity conducted by a discharged employee.3 (See, e.g., Hunsucker v.
Sunnyvale Hilton Inn (1994) 23 Cal.App.4th 1498, 1502-1505 [absolute privilege of
section 47, subdivision (b) applied where hotel management called police upon being
informed by a maid that a customer was seen brandishing a gun]; Passman v. Torkan
3
We note that while the California Supreme Court denied review in Beroiz, it has
granted review in Balser v. Wells Fargo Bank, N.A. (Sept. 20, 2001, B144933)
[nonpub.opn.] review granted Dec. 17, 2001, S101833, where Division Three of this
District held that the absolute privilege of section 47, subdivision (b) barred the plaintiff’s

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(1995) 34 Cal.App.4th 607, 616-620 [letter by party to district attorney’s office
recommending investigation and prosecution of opposing party subject to absolute
privilege of section 47, subdivision (b)]; Cabesuela v. Browning-Ferris Industries of
California, Inc. (1998) 68 Cal.App.4th 101, 112 [company’s communication to police
accusing terminated employee of threat of violence protected by absolute privilege of
section 47, subdivision (b) even if the report was made in bad faith]; Cote v. Henderson
(1990) 218 Cal.App.3d 796, 806 [report of rape to police was absolutely privileged under
section 47, subdivision (b)]; Kim v. Walker (1989) 208 Cal.App.3d 375, 383 [attorney’s
communications to plaintiff’s parole agent were absolutely privileged]; Johnson v.
Symantec Corp. (N.D. Cal. 1999) 58 F.Supp.2d 1107, 1113 [police reports were
absolutely privileged under section 47, subdivision (b)(3)]; Forro Precision, Inc. v. Intern
Business Machine (9th Cir. 1982) 673 F.2d 1045, 1056 [communications by IBM
officials to police were absolutely privileged].)
The only case to conclude that reports of criminal activity to the police are subject
to the qualified, rather than absolute privilege, Fenelon v. Superior Court (1990) 223
Cal.App.3d 1476 (Fenelon), has not been followed, and has been roundly criticized by
cases following Williams on the basis that “the constitutional and procedural safeguards
governing California’s judicial system undermine the concern that applying the absolute
privilege to police reports endangers the rights of the reported wrongdoer.” (Beroiz,
supra, 84 Cal.App.4th at pp. 495-496.) While the Fenelon court feared abuse of the
absolute privilege, the Williams court recognized the importance of communication
between citizens and the police, and that effective investigation requires an open channel
of communication that would not be possible if a qualified privilege applied instead.
(Williams, supra, 129 Cal.App.3d at pp. 753-754.)
Appellant’s citation to Devis v. Bank of America (1998) 65 Cal.App.4th 1002,
1008 (Devis) for the proposition that a qualified, rather than absolute, privilege should
complaint for damages resulting from his arrest by police after the plaintiff, a landlord,
attempted to cash a check given to him by a commercial tenant.

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apply, is unconvincing. In Devis, a bank had been informed by a customer, Patrick
McKinney, that it was not to honor checks presented by a David Davis. When David
Devis (not Davis) came to the bank to cash a check written by Mr. McKinney, he was
arrested and jailed, but later released after Mr. McKinney learned that Devis had been
wrongfully arrested. While Division Five of this District purported to follow the
Williams rule of absolute privilege, it added in dictum that “the privilege applies only if
the erroneous report to the police is made in good faith. (Turner v. Mellon (1953) 41
Cal.2d 45, 48; Du Lac v. Perma Trans Products, Inc. (1980) 103 Cal.App.3d 937, 941.)
The distinction is not critical here, however, since appellants have not alleged that the
Bank acted without good faith.” (Devis, supra, 65 Cal.App.4th at p. 1008.)
Devis does not control here. The Beroiz court concluded that the Devis decision
did not affect the Beroiz court’s holding that police reports are subject to the absolute
privilege. In stating that no California cases have followed Fenelon, the Beroiz court
noted that Devis’s suggestion of a qualified privilege was dictum and that the cases cited
in Devis predated Silberg “in which our Supreme Court indicated the broad scope of the
absolute privilege [citation], and thus [the cases] are not persuasive on the issue before
us.” (Beroiz, supra, 84 Cal.App.4th at pp. 495-496, fn. 6.) Similarly, Johnson v.
Symantec Corp., supra, 58 F.Supp.2d at page 1110, footnote 4, characterized the
pertinent passage in the Devis opinion as dictum and confusing in that it actually
followed Fenelon although it professed to follow Williams. We thus dispense with a
large portion of appellant’s brief devoted to the proposition that persons filing a police
report are subject to a qualified, rather than absolute, immunity.
Under the foregoing authorities, we conclude that Ms. Showalter’s communication
to the police of her suspicion that appellant was attempting to pass a counterfeit check
was subject to the absolute privilege of section 47, subdivision (b). Moreover, victims of
improper reports to the police are not without protection. As noted in Hunsucker v.
Sunnyvale Hilton Inn, supra, 23 Cal.App.4th at page 1504, “both the California and
United States Constitutions, as well as various statutes, [fn. omitted] provide safeguards
for those detained by police to ensure that their rights are not abrogated. This protection

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applies regardless of whether the absolute privilege of section 47 applies to the citizen
who originally made the report to the police.” Thus, Penal Code section 148.5,
subdivision (a) provides that “[e]very person who reports to any peace officer . . . that a
felony or misdemeanor has been committed, knowing the report to be false, is guilty of a
misdemeanor.”
Appellant, however, claims that her action is predicated on the Unruh Civil Rights
Act, embodied in section 51 et seq.,4 and that therefore, section 47, subdivision (b), is
inapplicable. We disagree. First, the privilege of section 47, subdivision (b) applies to
both statutory and common law causes of action. (Ribas v. Clark (1985) 38 Cal.3d 355,
365.) Second, where the plaintiff alleges a violation of statute based on the
communicative act protected by section 47, subdivision (b), his or her causes of action
are barred. (Rubin v. Green (1993) 4 Cal.4th 1187, 1203.) In the context of an unfair
competition claim, our Supreme Court stated: “To permit the same communicative acts
to be the subject of an injunctive relief proceeding brought by this same plaintiff under
the unfair competition statute undermines that immunity. If the policies underlying
section 47(b) are sufficiently strong to support an absolute privilege, the resulting
immunity should not evaporate merely because the plaintiff discovers a conveniently
different label for pleading what is in substance an identical grievance arising from
identical conduct as that protected by section 47(b).” (Ibid.)
Appellant here has claimed violations of sections 51 and 52.1 based on the
communications made by respondent’s employees to the police, which are subject to the
protection of section 47, subdivision (b). In appellant’s complaint, she alleged that
respondent contacted the police, wrongfully accused appellant of criminal behavior, and
4 Under section 51, subdivision (b), all persons, no matter what their sex, race,
color, religion, ancestry, national origin, disability, or medical condition, are entitled to
the full and equal accommodations, advantages, facilities, privileges, or services in all
business establishments. Section 52.1, subdivision (a) prohibits the interference by
threats, intimidation, or coercion, of any individual’s exercise or enjoyment of rights
secured by the Constitution or laws of the United States, or the Constitution or laws of
the state.

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requested that appellant be detained and/or held in handcuffs, thereby violating section
52.1. She also attempted to allege a violation of section 51, by contending that
respondent “has an informal policy of singling out persons because of race and/or
national origin as inherently suspicious, i.e., engaging in the informal practice of racial
profiling of bank customers.” On appeal, she claims that her complaint is not defeated by
the communication privilege because she has alleged that respondent has a policy of
singling out Hispanic patrons, which cannot be considered a publication under section 47.
Yet, when winnowed down to its essentials, appellant’s true complaint lies in the
communication made to the police. Regardless of the reasons why respondent was
motivated to call the police, the fact remains that it was that communication to the police
that set in motion the chain of events causing her to be handcuffed, searched and
questioned. It was that privileged communication which gave rise to the causes of action
she alleged in her complaint. Thus, the reasoning expressed in Rubin v. Green, supra, 4
Cal.4th at page 1203, clearly applies here, where appellant has sought to allege a different
label, i.e., violation of the Unruh Civil Rights Act, for pleading a grievance arising from
the protected communication.
Appellant’s citation to a depublished case5 cannot assist her cause; nor can she
rely on Begier v. Strom (1996) 46 Cal.App.4th 877, 885 for the proposition that section
51 overrides the section 47, subdivision (b) privilege. In that case, unlike here, the
Legislature specifically enacted an exception to the immunity statute to protect those who
report child molestation. (Begier v. Strom, supra, at p. 883.) Hence, the Penal Code
states: “Any other person reporting a known or suspected instance of child abuse or
neglect shall not incur civil or criminal liability as a result of any report authorized by this
article unless it can be proven that a false report was made and the person knew that the
report was false or was made with reckless disregard of the truth or falsity of the report,
and any person who makes a report of child abuse or neglect known to be false or with
5 Randall v. Scovis (Mar. 5, 2001) D036508, opinion ordered nonpublished (June
13, 2001).

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reckless disregard of the truth or falsity of the report is liable for any damages caused.”
(Pen. Code, § 11172, subd. (a).)
Finally, appellant’s citation to cases in which the absolute immunity of section 47,
subdivision (b) was held inapplicable does not assist her. Mattco Forge, Inc. v. Arthur
Young & Co. (1992) 5 Cal.App.4th 392, 402-406 held that the litigation privilege does
not protect a negligent expert witness from a malpractice suit sounding in contract and
tort by the party who hired the witness. The court distinguished cases in which the
section 47 privilege was found to have shielded experts who were hired by an opposing
party or hired jointly by adverse parties. Thus, the policy of freedom of access to the
courts and encouragement of witness to testify would not be furthered by protecting the
negligent expert. (Mattco Forge, Inc. v. Arthur Young & Co., supra, at p. 404.) In the
instant case, freedom of communication to the police is a policy which the Legislature
and courts have seen fit to encourage.
Cutter v. Brownbridge (1986) 183 Cal.App.3d 836, 841-848 (Cutter), also cited by
appellant, held that the constitutional right of privacy overrides the privilege of section
47, subdivision (b) where a psychotherapist volunteered information concerning a patient
to the patient’s litigation opponent in contravention of Evidence Code section 1015,
which requires a psychotherapist to assert the patient’s privilege against disclosure of
confidential communications. The holding in Cutter, however, has met with disapproval.
The court, in Wise v. Thrifty Payless, Inc. (2000) 83 Cal.App.4th 1296, 1303, footnote 1,
rejected the plaintiff’s argument that her statutory and constitutional right to privacy
trumps the litigation privilege, stating: “Plaintiff’s heavy reliance on [Cutter] is
unconvincing. Cutter not only predates Silberg, but its analysis, which ‘weighs’ a
plaintiff’s constitutional right to privacy against the interests promoted by the litigation
privilege [citation], clearly conflicts with the absolute nature of the privilege as
subsequently stated by the state Supreme Court.”
In ITT Telecom Products Corp. v. Dooley (1989) 214 Cal.App.3d 307, 317-320
(ITT), relied upon by appellant, an employee executed an express confidentiality
agreement, yet later testified as an expert witness against his former employer. The court

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held that the litigation privilege is inapplicable to an employee’s voluntary disclosures
made for compensation, rather than for the purposes of litigation, recognizing that by
signing a nondisclosure agreement, the employee undertook an obligation similar to the
psychotherapist’s statutory duty set forth in Cutter. That is, a contractual duty required
the party asserting the litigation privilege to refrain from testifying. Even aside from the
fact that ITT predates Silberg and relies heavily on Cutter, ITT does not assist appellant.
The Unruh Civil Rights Act does not preclude respondent from communicating with the
police, and appellant’s argument to the contrary must fail. Nor do we see anything in the
Unruh Civil Rights Act to indicate that it was enacted as an exception to the
communication privilege.
Appellant does not convince us that her complaint is anything other than an
attempt to plead around the section 47, subdivision (b) privilege. Since we have
concluded that appellant’s attempt to bypass the absolute privilege of section 47,
subdivision (b) fails, we need not address her argument that the only defenses to sections
51 and 52.1 are in the nature of business interests that further a public policy.
3. Whether the section 47, subdivision (b) privilege shields respondent from
liability from the other torts alleged
Appellant also devotes a portion of her brief to the argument that by maliciously
filing a false police report because appellant is Hispanic, respondent committed false
imprisonment, slander, invasion of privacy, intentional infliction of emotional distress,
and negligence. However, as previously mentioned, the section 47, subdivision (b)
privilege applies to all causes of action that arise out of the protected communication,
except for malicious prosecution. (Rubin v. Green, supra, 4 Cal.4th at p. 1194; Ribas v.
Clark, supra, 38 Cal.3d at p. 364 [invasion of privacy]; Jeffrey M. v. Imai, Tadlock &
Keeney (2000) 85 Cal.App.4th 345, 361 [negligent and intentional infliction of emotional
distress]; Imig v. Ferrar (1977) 70 Cal.App.3d 48, 57 [slander]; Devis, supra, 65
Cal.App.4th at p. 1008 [negligence]; Hunsucker v. Sunnyvale Hilton Inn, supra, 23
Cal.App.4th at pp. 1502-1505 [false imprisonment].)

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4. The Annunzio-Wylie Anti-Money Laundering Act
Respondent’s motion for summary judgment included the argument that it had
complete immunity from liability for reporting any possible violations of law under 31
United States Code section 5318(g)(3), the Annunzio-Wylie Anti-Money Laundering
Act. Since the trial court based its ruling only on the section 47, subdivision (b)
privilege, and did not address the federal immunity argument, we decline both appellant’s
and respondent’s invitation to explore federal immunity implications.
5. Whether the trial court abused its discretion in denying appellant’s
request to continue the motion for summary judgment
Appellant states that the trial court did not grant her request to continue her
opposition to the summary judgment motion because she needed more time for
discovery, but it is unclear whether she presents the denial of her request as an issue for
appeal.
In any event, we conclude that the trial court did not abuse its discretion. The
record shows that on August 7, 2001, appellant made an ex parte application for an order
shortening time for her motions to compel discovery for July 10, 2000, arguing that she
needed to take the depositions of respondent’s employees to oppose the summary
judgment motion. At the hearing, respondent argued that absolute immunity rendered
further discovery by appellant irrelevant, and to conserve both parties’ financial
resources, the depositions of respondent’s employees should not go forward until after
the summary judgment motion was heard.
The trial court denied the ex parte application and ruled that any showing for
additional discovery should be made in appellant’s opposition to the motion for summary
judgment. Appellant did not submit a declaration regarding the necessity for additional
discovery with her opposition to the motion for summary judgment, but filed a
supplemental opposition, with a declaration attached, two days prior to the hearing. In
that declaration, appellant’s counsel stated appellant’s ability to conduct discovery was
essential to oppose the motion, and that respondent thwarted her ability to engage in

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meaningful discovery including preventing appellant from taking depositions, because
appellant agreed to give her deposition prior to deposing respondent’s employees.
However, in making a request for a continuance under Code of Civil Procedure
section 437c, subdivision (h), appellant must show facts essential to justify opposition to
a summary judgment may exist. (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 548.) “It is
not sufficient under the statute merely to indicate further discovery or investigation is
contemplated.” (Ibid.) Appellant did not do so.
We conclude that the trial court did not abuse its discretion in denying appellant’s
request for a continuance.
DISPOSITION
The judgment is affirmed. Respondent shall receive costs on appeal.
NOT FOR PUBLICATION.
_______________________, Acting P.J.
NOTT
We concur:
____________________, J.
DOI TODD
____________________, J.
ASHMANN-GERST

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