Filed 7/25/13 Rowley v. U.S. Bank National Assn. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THOMAS D. ROWLEY, Plaintiff and Appellant,

v.

U.S. BANK NATIONAL ASSOCIATION et al.,

Defendants and Respondents. G047090

(Super. Ct . No. 30-2011-00441143)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Franz E. Miller, Judge. Affirmed. Thomas D. Rowley, in pro. per., for Plaintiff and Appellant. Bryan Cave, Lawrence P. Ebiner a nd Jonathan G. Fetterly for Defendants and Respondents.

* * *2 Plaintiff Thomas D. Rowley appeal s a judgment entered in favor of

defendants U.S. Bank National Associ ation (U.S. Bank) and U.S. Bancorp. 1 Rowley claims the court erred by gr anting defendants’ motion for summary judgment, declining to consider tardy supplemen tal opposition papers, and refu sing Rowley’s request to continue the hearing to permit a dditional discovery. We affirm.

FACTS

Procedural History In his operative complaint, Rowley , an attorney, alleged U.S. Bank wrongfully dishonored two chec ks drawn on Rowley’s client trust account at U.S. Bank (Account). Rowley averred U.S. Bank’s actions resulted in an administrative investigation by the State Bar of California, as well as emotional a nd physical distress to Rowley. The court sustained defendants’ de murrer to Rowley’s other causes of action (defamation, intentional infliction of emo tional distress, and ne gligent infliction of emotional distress); Rowley does not appeal this ruling. Defendants filed a motion for summary judgment on December 22, 2011, noticing the hearing for March 13, 2012. Defendants argued there were insufficient funds available in Rowley’s A ccount at the time the dishonore d checks were presented to U.S. Bank for payment, which justified the di shonor of the two checks. Rowley did not file a timely opposition to the motion for summa ry judgment (i.e., by February 28, 2012). On March 9, 2012, defendants received a letter from Rowley stating he had been

1 U.S. Bank is a wholly-owned subsidiary of U.S. Bancorp, a financial services holding company. U. S. Bancorp does not maintain banking relationships with or provide banking services to individual cust omers. U.S. Bancorp was named as a defendant as a result of the relationship betw een U.S. Bank and U.S. Bancorp, not as a result of any acts or omissions that can be attri buted to U.S. Bancorp. Thus, if U.S. Bank was entitled to summary judgment, U.S. Banc orp was also entitled to summary judgment.3 experiencing medical problems. Based on th is letter, the parties stipulated to a continuance of the summary judgment heari ng to April 10, 2012 . In ruling on the summary judgment motion, the court consider ed Rowley’s initial opposition papers, filed on March 29, 2012, but rejected consideration of supplement al opposition papers filed on April 9.

Undisputed Facts The following facts are undisputed, as set forth in defendants’ separate statement of material facts and Rowley’s res ponsive separate statement. (See Code Civ. Proc., § 437c, subd. (b)(1), (3).) Rowley’s sepa rate statement admitte d the vast majority

of the material facts set forth in defendant s’ separate statement and did not introduce

additional material facts. Rowley established the Account with U.S. Bank in 2006. In doing so, Rowley agreed to be bound by a deposit ag reement. The depos it agreement stated Rowley does “not have the right to withdraw funds that exceed th e available balance on [his] account.” “U.S. Bank di d not have an agreement with [Rowley] to pay overdrafts on the Account.” “U.S. Bank did not have a usual custom or practice of paying overdraft

or insufficient funds items on the Account.” The deposit agreement indicated that funds deposited by check would not necessarily be available immediately and that, in certain circumstances (including when mo re than $5,000 is deposited on a single day), delays of up to nine business days could occur. The Account balance on January 7, 20 10, was $42.49. On Friday, January 8, 2010, a check drawn on a Bank of Ameri ca account in the amount of $25,000.00 was deposited into the Account usin g a counter deposit slip. The c ounter deposit slip “bears a handwritten note stating ‘Hold.’” Between January 8, 2010, and January 22, 2010, no additional funds were depos ited into the Account.4 Immediately upon deposit of the $25, 000 check, $100 became available, bringing the Account balance to $142.49. U.S. Bank de layed the availability of the additional $24,900. Of this amount, $4,900 was subject to a two business day hold, and was made available on Tuesday, January 12, 2010. The resulting available balance was $5,042.49. Thus, as of Janua ry 12, $20,000 had not yet been made available to Rowley by U.S. Bank. On January 14, 2010, two $2,500 checks payable to Rowley from the Account were presented to U.S. Bank for paym ent. There were sufficient available funds in the Account, so both checks were paid. The closing available balance on January 14, 2010, was $42.49. On behalf of his client, Rowley wrote two checks on the Account to Dr. George Rombach, apparently as payment for services rendered in the client’s legal matter. On January 15, 20 10, California Bank & Trust presented the Rombach checks (both in the amount of $2,500) for payment to U.S. Bank. The available balance in the Account on both January 15 and January 19 was $42.49. 2 U.S. Bank did not pay either of

the Rombach checks. U.S. Bank dishonored the Rombach checks on January 19, 2010, by returning them to the “Fed eral Reserve in San Franci sco.” On January 22, the

Rombach checks “were re-submitted for payment and paid by U.S. Bank.”

Disputed Facts In essence, Rowley attempted to disput e two material facts in U.S. Bank’s separate statement: (1) Whether an adequate notice of hold on ava ilability was provided by U.S. Bank to Rowley; and (2) the length of U.S. Bank’s hold.

2 Note that January 16 and January 17, 2010, were weekend days. January 18, 2010, was a federal holiday. See appendix A for an annotated January 2010 calendar based on the undisputed facts in this case.5 As to the first factual issu e, Rowley does not dispute that the word “‘Hold’” was written on the deposit slip. But Rowl ey contends (and U. S. Bank implicitly concedes) that mere notice of a nonspecific ho ld was insufficient. U.S. Bank introduced evidence that, in addition to the generic depo sit slip notice, it printed two copies of a document entitled “Notice of Hold,” a branch copy and a customer co py. The Notice of Hold (a copy of the branch copy was authen ticated and submitted into evidence) states that U.S. Bank was delaying availability of $24,900, with $4,900 available January 12, 2010, and $20,000 available January 20, 2010. The Notice of Hold states that the reason for the hold was that the deposited check was in excess of $5,000. According to a declaration filed by a regional operations mana ger, “[i]t is U.S. Ba nk’s policy, custom and practice to deliver the customer copy of the Notice of Hold to the person making the deposit at the time of the deposit, and to retain the branch copy of the Notice of Hold.” Rowley purported to dispute each of thes e facts in his responsive separate statement. Rowley denied he received the Notice of Hold, citing his own declaration. The only pertinent information in Rowley’s declaration is an assertion that Rowley never received a notice of hold at any time. But Rowley himself was not the depositor of the $25,000 check. U.S. Bank submitted Rowley ’s response to its discovery request for production of documents. Those documents in cluded Rowley’s letter to the State Bar in which he explained that his client’s pres ident, Kenneth Hubbard, had deposited the $25,000 check directly into Rowley’s Acco unt. Rowley did not submit a declaration from Hubbard. Rowley claimed in his respon sive separate statement that a U.S. Bank branch manager told him there was never an y hold placed on the deposited funds. But Rowley’s declaration did not support this assertion. And no other evidence was submitted in support of his assertion. There is a short letter with U.S. Bank’s letterhead in the record, dated February 8, 2010, and purportedly signed by a branch manager, which states that the $25,000 “should have been available on January 15, 2010, but was placed on hold through January 20, 2010.” The branch mana ger apologized in the letter.6 But the letter is not authenticated in any fa shion, nor was any f oundation provided to overcome a hearsay objection; the lette r was simply submitted as an exhibit accompanying Rowley’s opposition. U.S. Ba nk filed a written objec tion and motion to strike this letter on grounds that it lacked fo undation, it lacked personal knowledge, it was hearsay, and it was irrelevant.

The second factual issue relates to the le ngth of the hold U. S. Bank actually placed on $20,000 of th e deposited funds. Rowley alleged in the operative complaint that U.S. Bank “did not make [$20,000 of the deposited] funds available in Plaintiff’s attorney/client trust account until January 22, 2010.” U.S. Bank’s separate statement established it delayed availability of the $20,0 00 for seven business days and the $20,000 was made available on January 20, 2010. U. S. Bank referenced th e Notice of Hold, the Account statement, and a declaration in which a regional operations manager authenticated and explained th ese documents. Rowley disput ed these facts, citing his own declaration (which does not include any pertinent factual statements) and a reference to his statement history (which does not actu ally indicate when th e funds were available but instead lists transactions). As previously noted, it is undisputed that the Rombach checks were actually paid on January 22, 20 10, when the checks we re resubmitted for payment.

Ruling The court granted U.S. Bank’s motion for summary judgment, ruling that Rowley had not demonstrated the existence of a triable factual issue. The court found that U.S. Bank had applied the correct f unds availability procedure under the deposit agreement and applicable law. Rowley was not entitled to personal no tice of the hold, as notice only needed to be given to the deposito r, and not to the account owner, at the time of deposit.7 DISCUSSION

Appellate Review of Summary Judgment “We review a grant of summa ry judgment de novo. [Citation.] We assume

the role of the trial court and redete rmine the merits of the motion.” ( Calemine v.

Samuelson (2009) 171 Cal.App.4th 153 , 160-161.) In doing so, we follow a three-step process: (1) identify the issues as framed by the pleadings; (2) evaluate whether the moving party has made a prima facie showing that would support summary judgment; and (3) if the moving party has made a pr ima facie showing, determine whether the responding party has dem onstrated the existence of a triable, material factual issue. ( Hamburg v. Wal-Mart Stores, Inc. (2004) 116 Cal.App.4th 497 , 503; Code Civ. Proc., § 437c, subds. (p)(1), (2).) “The motion for summary judgment shall be granted if all the papers

submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In determining whether the papers show that there is no triable issue as to any ma terial fact the court shall consider all of the evidence set forth in the papers, except that to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment may not be granted by the court based on inferences reasonably deducible from the evidence, if contradicted by other inferenc es or evidence, which raise a triable issue as to any material fact.” (C ode Civ. Proc., § 437c, subd. (c).) A cause of action has no merit if “[o]ne or more of the elements of the cause of action cannot be separately established” or if there is “an a ffirmative defense to that cause of action.” (§ 437c, subds. (o)(1), (2).)8 The Availability of Funds Deposited by Check Rowley argues U.S. Bank should ha ve honored the Rombach checks. Rowley asserts he had funds available to pay the Rombach checks as a result of the January 8, 2010 deposit of $25,000 into the Account. To address these contentions, we review the terminology and structure of th e banking system as it pertains to checks. “There is a well-defined process fo r the ‘settlement’ (payment) of an ‘item’” (e.g., a check) under the Californi a Uniform Commercial Code, which also defines the various participants in this process. 3 ( Wells Fargo Bank, N.A. v. FSI, Financial Solutions, Inc. (2011) 196 Cal.App. 4th 1559, 1568-1569 ( FSI ).) Typically, three parties are identified on a check: “‘(1 ) the “drawer” who wr ites the check, (2) the “payee”, to whose order the check is made out, and (3) the “drawee” or “payor bank”, the bank which has the drawer’s checking account from which the check is to be paid. In form, a check is an order to the drawee bank to pay the face amount of the check to the payee. After receiving the check, the pay ee typically indorses it on the back in the payee’s own name, and then deposits it in the payee’s account in a different bank, the “depositary bank”.’” ( Mills v. U.S. Bank (2008) 166 Cal.App. 4th 871, 881, fn. 10.) 4

“When a customer deposits a check dr awn on another bank, the customer receives a provisional credit for the amount of the check.” ( Symonds v. Mercury Savings

& Loan Assn. (1990) 225 Cal.App.3d 1458, 1464.) The depositary bank, “acting as the customer’s agent, then forw ards the check to the payor bank or a presenting bank which gives the [depositary] bank a provisional credit.” ( Ibid .; see FSI , supra , 196 Cal.App.4th at p. 1571 [depositary bank must promptly take proper action to collect

3 All statutory references, unless ci ted otherwise, are to the California Uniform Commercial Code.

4 It is possible that the payee has an account at the same bank as the drawer, in which case the depositary ba nk is the same entity as the payor bank. This possibility does not bear on the fa cts at issue here.9 check to avoid potential liability].) These initia l credits are merely provisional settlements; final settlement of the check through th e check clearing system is not instantaneous. (See FSI , at pp. 1569-1570; Mills v. U.S. Bank , supra , 166 Cal.App.4th at p. 881, fn. 10 [“‘The depositary bank credits the check to the payee’s account, and sends the check through the check clearing system to the payor bank fo r ultimate payment from the drawer’s account’”].)

The provisional settlement of a deposited check does not entail the availability of funds in the payee’s account. As a matter of course, depositary banks place holds on the availability of funds to avoi d losing money in those instances in which checks are dishonored by payor banks. 5 The reason for the delay between the deposit of

a check and the final settlement of a check is that the payor bank must be afforded the opportunity to evaluate whethe r the check should be honored or dishonored. If the payor bank dishonors the check, the provisional se ttlements made throughout the chain of banks are reversed. ( FSI , supra , 196 Cal.App.4th at pp. 1569-1570.) Here, U.S. Bank is the depositary ba nk for the $25,000 check deposited on January 8, 2010. It is the pa yor bank for the four checks dr awn on the Account, including the two checks Rowley wrote to himself and the two Rombach checks. The legal questions raised by this appeal are: (1) When was U.S. Bank required to make the $25,000 deposited by Hubbard on January 8, 2010, available for use by Rowley; and (2)

5 “Some customers assume that when th ey deposit a check into their account, the check is ‘good’ immediately and can be draw n against at once. That is wrong. Banks usually put a hold (commonl y known as Delayed Funds Availability or DFA) on uncollected funds represented by a deposite d check. A bank’s hold regulations are usually included in the deposit agreement (either explicitly or by reference), printed on the back of deposit slips, or both. [¶] [H ]olds are a justifiable and necessary protection for depositary banks. When a depositary bank allows the customer to draw on uncollected funds, the bank is making a loan to its customer in relian ce on the check’s ultimate payment . . . .” (2 White et al., Uniform Commercial Code (6th ed. 2013) The Payor Bank and Its Custom er, § 21-4, pp. 536-537.)10 When and how was U.S. Bank required to evaluate Rowley’s account balance in determining whether to honor the Rombach checks? Federal law answers the first question. The Expedited Funds Availability Act (12 U.S.C., §§ 4001-4010), implemented by Regulation CC (12 C.F.R. §229.1 et seq. (2010)), limits the length of time a depositary bank can place a hold on the availability of funds deposited by a check payee. (See Oak Brook Bank v. Northern Trust Co. (7th Cir. 2001) 256 F.3d 638, 639.) “C ongress was seeking a way for depositors to access their deposited funds more quickly while at the same time mana ge the risks banks faced in allowing depositors expedited access to their funds.” ( Farm Credit Services v. American

State Bank (8th Cir. 2003) 339 F.3d 764, 768.) Here, we only need con cern ourselves with Regulation CC’s treatment of a local check in the amount of $25,000, like th e check deposited by Hubbard in Rowley’s

Account. 6 Assuming no other checks are deposited on the same day, the depositary bank must make the first $100 7 of a $25,000 local check available on the first business day after the banking day on wh ich funds were deposited. 8 (12 C.F.R. § 229.10(c)(1)(vii)(A)

6 The parties dispute whether the $2 5,000 check was a “local” (12 C.F.R. § 229.2(r), (s) (2010)) or “nonlocal” (12 C. F.R. § 229.2(v), (w) (2010)) check under Regulation CC. Depos itary banks have more time to make nonlocal check funds available. (12 C.F.R. § 229. 12(b)(1), (c)(1) (2010).) But we need not explore differences between local and nonlocal checks. As e xplained below, U.S. Bank complied with Regulation CC as a matter of law even assumi ng the $25,000 check deposited on January 8, 2010 was “local.”

7 Actually, as of July 21, 2010, the law was amended to require banks to make the first $200 available the next busi ness day. (See 12 U. S.C. § 4002(a)(2)(D).) This change in the law is not yet reflecte d in Regulation CC, however, and was not in effect when Rowley’s $25,000 chec k was deposited on January 8, 2010.

8 “ Banking day means that part of any busine ss day on which an office of a bank is open to the public fo r carrying on substantially all of its banking functions.” (12 C.F.R. § 229.2(f) (2010).) “The term ‘ business day’ means any day other than a Saturday, Sunday, or legal holid ay.” (12 U.S.C. § 4001(3); s ee also 12 C.F. R. § 229.2(g)11 (2010).) As for the next $4,900 of the local check, “a de positary bank shall make funds deposited in an account . . . available for w ithdrawal not later than the second business day following the banking da y on which funds are deposite d . . . .” (12 C.F.R. § 229.12(b)(1) (2010).) “Sections 229.10(c) and 229.12 do not appl y to the aggregate amount of deposits by one or more checks to the extent that the aggregate amount is in excess of $ 5,000 on any one banking day.” (1 2 C.F.R. § 229. 13(b) (2010).) In the case of a deposit in excess of $5,000, “the depositary bank may extend the time periods established under §§ 229.10(c) and 229.12 by a reasonable period of time.” (12 C.F.R. § 229.13(h)(1) (2010).) “[A] reas onable period is an extensio n of up to . . . five business days for” local checks in excess of $5,000. (12 C.F.R. § 22 9.13(h)(4) (2010).) “A longer extension may be reasonable, but the bank has the burden of so establishing.” ( Ibid .) Accordingly, with regard to the availability of $20,000 out of a $25,000 local check, Regulation CC authorizes a hold of seven business days from the banking day on which the funds we re deposited (i.e., an extension of five business days beyond the two business days allowed for $4,900). (See also Fin. Code , § 1429, subd. (a)(5) [former Fin. Code, § 867, consistent with Re gulation CC as to the tr eatment of a $25,000 local check].) As to the second legal question, upon presentment of a check drawing upon one of its customer’s accounts, a payor ba nk “must act promptly to determine whether [the] check should be honored.” ( Roy Supply, Inc. v. Wells Fargo Bank (1995) 39 Cal.App.4th 1051, 1061.) 9 In deciding whether to honor a check, the bank considers the

(2010) [legal holidays include “t hird Monday in January”].)

9 Prompt action on the check is ac tion that occurs by the payor bank’s “‘midnight deadline,’” i.e. , “midnight on its next banking day following the banking day on which it receives the relevant item ” (§ 4104, subd. (a)(10)). (See Los Angeles Nat. Bank v. Bank of Canton (1991) 229 Cal.App.3d 1267, 1275-1276 [“payor bank may revoke a provisional settlement . . . by either returning the check or sending written notice that the check will not be ho nored” by midnight deadline]; §§ 4301-4302.) “‘If the payor12 availability of funds in the drawer’s account and the terms of any agreement between the drawer and payor bank. “A bank may charge against the account of a customer an item that is properly payable from that account ev en though the charge cr eates an overdraft. An item is properly payable if it is authoriz ed by the customer a nd is in accordance with any agreement between the cust omer and bank.” (§ 4401, s ubd. (a).) “[A] payor bank wrongfully dishonors an item if it dishonors an item that is properly payable, but a bank may dishonor an item that would create an overdraft unless it has agreed to pay the overdraft.” (§ 4402, subd. (a).) “A payor ba nk’s determination of the customer’s account

balance on which a decision to dishonor for in sufficiency of available funds is based may be made at any time between the time the ite m is received by the payor bank and the time that the payor bank returns the item or gives notice in lieu of return, and no more than

one determination need be made .” (§ 4402, subd. (c).) Thus, a payor bank may dishonor a check when there are insufficient funds available in the account of the drawer to pa y the full amount of the check, unless the payor bank is contractually obligated to prov ide overdraft protection. Although there is some flexibility as to when a payor bank evaluates whether a check is “properly payable,” it must act promptly after pres entment of the check, i.e., by its midnight

deadline.

U.S. Bank Properly Dishonored the Rombach Checks

U.S. Bank came forward with undisputed evidence that it was entitled to judgment as a matter of law. The $25,00 0 check was deposited into the Account on January 8, 2010. U.S. Bank was obligated to make funds available to Rowley in

accordance with the tim eline set forth by Regulation CC and in accordance with the

bank does not promptly dis honor the check, the provisional settlements throughout th[e] chain of banks become final.’” ( Holcomb v. Wells Fargo, N.A. (2007) 155 Cal.App.4th 490, 497.)13 deposit agreement. U.S. Bank properly made available the first $100 within one business day and $4,900 within two bus iness days. Rowley withdr ew $5,000 on January 14, leaving insufficient funds available to pay th e two $2,500 Rombach checks. U.S. Bank had seven business days from January 8, a Fr iday, to make the final $20,000 available under Regulation CC. Seven business days from January 8 was January 20. 10 U.S. Bank submitted evidence showing the $20,000 was made available on January 20, 2010. U.S. Bank did not have a contractual obligation to pay overdrafts on the Account. In sum,

U.S. Bank established the Romb ach checks were not “properl y payable” when presented for payment on January 15 or when dishonored on January 19.

The burden shifted to Ro wley to bring forth evidence demonstrating the existence of a triable, material issue of fact. He did not meet his burden. Rowley denies the $20,000 was available on January 20, po inting to documents indicating the Rombach checks were not actually honore d until January 22, 2010. But the only inference that can reasonably be taken from the record is that the Rombach checks we re honored the first time they were resubmitted after January 20. Rowley provides no evidence that shows funds were unavailable between January 20 and January 22. Rowley also cited the purported statem ents of a U.S. Bank branch manager apologizing for not making the $20,000 av ailable by January 15, 2010. However, Rowley did not succeed in intr oducing admissible evidence of these supposed statements (by either testifying to alleged admissions in his declaration or authenticating the letter submitted with the opposition). Defendants objected to and move d to strike this exhibit, raising a variety of meritorious objections unde r the Evidence Code. It is also immaterial for purposes of deciding the issue before us whether a particular branch manager apologized after the fact to Rowley for what the branch manager perceived to be a

10 January 11, 12, 13, 14, 15, 19, and 20 were busi ness days (i.e., weekdays, not including legal holidays). January 9, 10 , 16, 17, and 18 (a le gal holiday) were not business days. See appendix A, post

.14 mistake. Rowley did not introduce any evid ence suggesting U.S. Ba nk violated the law, or the deposit agreement, by waiting until Ja nuary 20, 2010, to ma ke the final $20,000 available and by dishonoring the Rombach checks.

U.S. Bank Provided Proper Notice of the Hold on $20,000 Rowley also contends that, even a ssuming the seven business day hold was appropriate, U.S. Bank failed to provide suffici ent notice of the hold to Rowley. Under Regulation CC, when the depositary bank app lies an exception, including the large deposit exception, it “must provide the depositor with a written notice.” (12 C.F.R. § 229.13(g)(1) (2010 ), italics added.) “The notice shall include the following information — (A) A number or code, which need not exceed four digits, that identifies the customer’s account; (B) The date of the de posit; (C) The amount of the deposit that is being delayed; (D) The reason the exception was invoked; and (E) The time period within

which the funds will be availabl e for withdrawal.” (12 C.F. R. § 229.13(g)(1)(i) (2010).) “The notice shall be provided to the depositor at the time of deposit” or mailed or

delivered “to the customer as soon as practicable . . . .” (12 C.F.R. § 229.13(g)(1)(ii) (2010), italics added.) There is no question U.S. Bank’s No tice of Hold contained all of the information required by Regulation CC. The evid ence submitted by U.S. Bank establishes this notice was pr ovided to the depositor of the $25,000 check, Kenneth Hubbard. Thus, U.S. Bank sh ifted the burden to Rowley to provide evidentiary support for his allegation that proper notice was not provided. Rowley brings forth no such evidence. By admitting he was not the person who made th e deposit, Rowley disclaimed personal knowledge of circumst ances of the depositor’s transa ction with the bank teller. Rowley did not obtain a declar ation from Hubbard denying rece ipt of the Notice of Hold. So long as it provided th e Regulation CC compliant notic e to the individual who deposited the check, U.S. Ba nk had no separate obligati on to inform the Account15 customer, Rowley, of the hold. (See 12 C.F. R. pt. 229H, appen. E, std. 229.13(g)(1)(c) [“For deposits made in person to an employee of the depos itary bank, the notice generally must be given to the person making the de posit, i.e., the ‘dep ositor’, at the time of deposit. The depositor need not be the cust omer holding the account. For other deposits, such as deposits received at an ATM, lobby deposit box, night depos itory, or through the mail, notice must be mailed to the customer not later than the close of the business day following the banking day on whic h the deposit was made”].)

The Court Did Not Abuse Its Discretion by Refusing to Consider Supplemental Opposition Papers Filed the Day before the Hearing Rowley contends his supplemental opposition, filed on Ap ril 9, 2012, the day before the summary judgment hearing, sh ould have been considered by the trial

court. The court refused to cons ider the supplemental opposition.

We review whether the court abused its discretion in de nying consideration of late-filed papers. ( Bozzi v. Nordstrom, Inc. (2010) 186 Cal. App.4th 755, 765

. ) “‘An

abuse of discretion is never presumed but must be affirmatively established by the party complaining of the provisions of the order. [Citing cases.] The burden is on the party complaining of the order to establish an abus e of discretion, and unless a clear case of

abuse is shown and unless there has been a mi scarriage of justice an appellate court will not substitute its opinion and th ereby divest the trial court of its discretionary power.’” ( Fontana Paving, Inc. v. Knecht , Garrison & Tait Associates, Inc. (1965) 238 Cal.App.2d 724, 726.)

“A trial court has broad discretion un der rule 3.1300(d) of the California Rules of Court to refuse to consider papers served and filed beyond the deadline without a prior court order finding good cause for late submission.” ( Bozzi v. Nordstrom, Inc.,

supra, 186 Cal.App.4th 755, 765.) “A hear ing on a motion for summary judgment16 cannot be satisfactorily conducted if neither the court nor the moving party is familiar with the opposing papers.” ( Shadle v. City of Corona (1979) 96 Cal.App.3d 173, 178.) Rowley does not meet hi s burden of showing an abuse of discretion. Rowley’s supplemental opposition was not filed in a timely fashion as required by

California Code of Civil Procedure section 4 37(c), subdivision (b)(2). Rowley believes

the court should have overlo oked the supplemental opposition’s tardiness because it allegedly showed the $25,000 deposit check wa s a local check rather than a nonlocal check. However, as discussed above, this di stinction is immaterial. U.S. Bank made funds available from the deposit check with in the shorter time period set forth by Regulation CC for a local check. We also note defendants and th e court previously agreed to continue the heari ng date after Rowley failed to file timely opposition to the summary judgment motion. This allowed Ro wley to file his in itial opposition to the motion, which was considered by the court. The court was well within its discretion in refusing to consider Rowley ’s last minute filing.

The Court Did Not Abuse Its Discretion by Denying a Continuance for Discovery Finally, Rowley claims the lower court wrongfully denied his request for a continuance (which was made orally at the hearing) to conduct further discovery. “If it appears from the affidavits s ubmitted in opposition to a motion for summary judgment . . . that f acts essential to jus tify 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 discov ery to be had or may ma ke any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due.” (§ 437c, subd. (h), italics added.) A court must provide relief to a part y opposing summary judgment if a proper showing is made by affidavit. ( Yuzon v. Collins (2004) 116 Cal.App.4th 149,17 167.) “Continuance of a summa ry 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, subdi vision (h). [Citations.] Thus, in the absence of an affidavit that requires a continuance under section 437c, su bdivision (h), we review the trial court’s denial of appellant’s request for a c ontinuance for abuse of discretion.” ( Cooksey v.

Alexakis (2004) 123 Cal.App.4th 246, 254 ( Cooksey ).) “A declaration in support of a reques t for continuance under section 437c, subdivision (h), must show: ‘(1 ) the facts to be obtained 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 obta in these facts. [Citations.]’ [Citation.] . . . [Citation.] ‘It is not sufficient under the statute merely to i ndicate further discovery or investigation is contemplated. The statute makes it a conditi on that the party moving for a continuance show “facts essential to justif y opposition may exist.”’” ( Cooksey , supra , 123 Cal.App.4th at p. 254.) A lack of diligence in pursuing discovery is a recognized factor supporting the denial of a continuance request. ( Id . at p. 257.) “A good faith showing that further discovery is needed to oppose summary judgment requires some justification for why such discovery could not ha ve been completed sooner.” ( Ibid .) While Rowley’s declarations (inc luding his late-filed supplemental opposition declaration) explain some of th e extenuating circumstances resulting in his failure to zealously pursue discovery before the hearing, Rowley did not meet the requirements outlined in Cooksey . Rowley’s declarations do not indicate which essential facts he expected to uncover or why he belie ved he would uncover them. To the extent Rowley asked for a continuance to conduct disc overy in his declarati ons, the tenor of the request is that exploratory disc overy needed to occur as to the broad issues implicated by Rowley’s allegations. The cour t did not abuse its discretion.18 DISPOSITION

The judgment is affirmed. Defenda nts shall recover costs incurred on appeal.

IKOLA, J.

WE CONCUR:

FYBEL, ACTING P. J.

THOMPSON, J.APPENDIX A: January 2010 Calendar

Note that relevant business days are bold and underlined. Sunday Monday Tuesday Wednes day Thursday Friday Saturday 1 2

3 4 5 6 7 8 $25,000 check deposited; $100 available 9

10 11 12 $4900 available; $20,000 still unavailable 13 14 U.S. Bank pays two checks payable to Rowley (total $5000) 15 Rombach checks presented for payment (total $5000) 16

17 18 Federal holiday 19 U.S. Bank dishonors Rombach checks 20 U.S. Bank makes remaining $20,000 available 21 22 Rombach checks paid by U.S. Bank 23

24 25 26 27 28 29 30

31