Filed 3/21/13 Porter v. Adger CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

JANE PORTER,

Plaintiff and Appellant,

v.

JOANNE ADGER et al.,

Defendants and Respondents. B237287

(Los Angeles County Super. Ct. No. PC049226)

APPEAL from a judgment of the Superi or Court of Los Angeles County, Burt Pines, Judge. (Retired judge of the L.A. S up. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Law Offices of Dawn T. Simon, Dawn T. Simon and Charles D. Collom for Plaintiff and Appellant. Law Offices of Steven R. Young a nd Jim P. Mahacek for Defendants and Respondents.

________________ _________________2 Plaintiff and appellant Jane Porter app eals from a judgment in favor of defendants and respondents Joanne Adger and Shadow Hills Mobile Home Park in this action arising

out of Porter’s eviction from the park. Porter contends that tr iable issues of fact exist as

to her causes of action for elder abuse and inte ntional infliction of emotional distress, and therefore, the trial court abused its discre tion by denying her requests for a continuance and to amend her complaint. We fi nd no abuse of discretion and affirm.

FACTS AND PR OCEDURAL BA CKGROUND

Allegations of the Complaint

Adger owns Shadow Hills. On Septembe r 21, 2010, Porter and the former park manager Sharon Olsen filed a complaint ag ainst Adger, her son, and Shadow Hills. Attached to the complaint was a copy of a contract between Porter and Adger’s son made in February 2003. Porter so ld her mobile home to Adger’s son for $7,500, with the agreement that Porter could resi de in the mobile home as long as she was able, even after the purchase amount was paid in full. The cont ract stated, “In the event that the sum is paid in full it is also understood that Jane E. Porter will not be charged any more money than the space rent which Jane E. Porter al ready pays to Shadow Hills Mobile Home Park.” The contract was signed by Porter and Adger’s son, with Olsen as a witness. Porter and Olsen filed an amended compla int on April 15, 2011. Porter’s alleged causes of action against Adger and Shadow H ills included elder abuse and intentional

infliction of emotional distress. She alle ged that Adger and he r son took financial advantage of her when they appropriated her mobile home and personal belongings under an agreement that was beneficial to Adger’s son. They intentiona lly inflicted emotional distress by not allowing Porter or her agent to retrieve her personal belongings, including clothing and mementos. When Porter’s agent tried to retrieve her personal effects, they had the agents arrested. Porter was left homeless in her nightgown.3 Motion for Summary Judgment and Supporting Evidence

On May 24, 2011, Adger and Shadow H ills filed a motion for summary judgment on the ground that a cause of action for elde r abuse could not be alleged against them based on a contract to which they were not parties or a lawful eviction. In addition, Porter and her agents were in fact allowe d access to the mobile home and retrieved

several items. Adger provided her declaration as to the following facts. Residents of the mobile home park rent space for their mobile homes. If a residency is terminated, the resident

still owns the mobile home and can sell it or remove it from the pa rk. Adger’s son does not own the park and is not authorized to act on behalf of her or the park. She hired Olsen as park manager in October 2002. Olsen lived in a mobile home provided by Adger and Shadow Hills. Adger was not a party to her son’s written agreement to purchase Porter’s mobile home. Adger terminated Olsen’s employment in October 2009 and requested that Olsen vacate her mobile home. Olsen and her husband were evicted on January 20, 2010.

Olsen and her husband moved into Porte r’s mobile home. Residents complained about rule violations and annoyances. Ol sen also harassed the new park manager, Charlene Ramirez. Porter, as the mobile ho me owner, was responsible for any violations by members of her household and guests. Adger presented Porter with two written noti ces to comply with pa rk rules. Porter refused. Adger initiated evicti on proceedings. On August 3, 2010, the court awarded her possession of the space. On August 20, 2010, the Los Angeles County Sheriff’s Department executed the writ of possession agains t Porter and all other occupants. Adger

and Shadow Hills have not denied access to Porter or her agents to remove her belongings. Porter can remove her mobile home at any tim e, although Adger is entitled to collect a daily storage charge. In addition, Adger provided the declara tion of park manager Ramirez. Ramirez stated that residents complain ed about the behavior of Olse n and her husband. The police4 were called on at least 30 occasi ons. She provided Porter’s attorneys with access to the mobile home to retrieve property on Septembe r 2 and 8, 2010, which was loaded into a truck. On September 9, 2010, Ramirez calle d the police after a resi dent reported that people had broken into Porter’s mobile home —the people turned out to be Olsen and one of the men who helped load the truck prev iously. Ramirez has not denied access to Porter or her authorized agents to remove property from the mobile home. Adger submitted a copy of the notice given to Porter requiring he r to comply with park rules, including the rule that guests ca nnot occupy a mobile home for more than 14 consecutive days without registering, and gue sts cannot stay more than 20 consecutive days without agreement of the park. The notice informed Port er of additional violations, including that Olsen and her husband we re speeding through the park, smoking

controlled substances outside her mobile ho me, engaging in loud ar guments, trespassing, and destroying park property. Adger’s attorney, Harmeet Chana, decl ared that he caused the filing of the unlawful detainer action, which was tried on August 3, 2011, and judgment was awarded to Adger, doing business as Shadow Hills. In the separate statement of facts, Ad ger and Shadow Hills quoted portions of Porter’s deposition testimony. Po rter admitted that she knew Olsen should not be living

in her mobile home and she could be evicted for it, but she did not care. She added, “Why would I care? They could kiss off any time they wanted to.”

Opposition to Motion for Summary Judgment and Supporting Evidence

Porter opposed the motion for summary judgment on the grounds that Adger and Shadow Hills ratified the purchase contr act by not raising Porter’s rent, which was considerably lower than the re nt paid by other residents. Porter also argued that the unlawful detainer action was not res j udicata as to the present issues. In support of her opposition, Porter subm itted her declaration. She declared that the sale price for her mobile home was too low, Adger’s son had not paid the promised5 amount, and she never agreed to have his name added to the title. The remainder of her declaration stated: “The eviction was a pile of horse____. I know it. They hated [Olsen]. When I said I knew what was goi ng on, I meant I knew too much. I knew what the Adgers were doing, from top to bottom. Th ey had to get rid of me. . . . The Park rules went out the window with the Adgers. They did what they wanted. And they wanted to get at [Olsen]. [O lsen] never did the things they accuse her of. [¶] [Adger] was the one who began the whole eviction proc ess. She knew as much as I did and knew what she was doing was wrong.”

Reply and Tria l Court Ruling

Adger and Shadow Hills filed a reply and objections to Porter’s declaration as conclusory, argumentative, speculative, and l acking foundation. A hearing was held on August 8, 2011. The trial court sustained the objections to Porter’s declaration and stated its tentative decision to grant the motion fo r summary judgment. The elder abuse cause of action was based on the allegation that A dger’s son added his name to the title on the mobile home. The undisputed facts showed A dger and Shadow Hills were not a party to the purchase agreement, and the ev idence failed to sh ow that they had an y interest in the agreement. In addition, the undisputed evidence showed Porter had been allowed to retrieve her belongings. Porter requested an opportunity to amend the complaint to allege a cause of action for abuse of process, because the unlawful de tainer action was con ducted for an improper purpose. Porter also claimed that the unla wful detainer proceedings were unlawful, because notice was not provided to Adger’s son, even though his name was on the title to

the mobile home. The trial court noted that the trial was scheduled for August 22, 2011, and it was too late to redefine the pleadings. The court denied the request to amend the complaint. The court granted the motion for summary judgment on the ground that there

were no triable issues of material fact as to any of the claims.6 Postjudgment Proceedings

On August 18, 2011 , Porter filed an ex parte notic e requesting an order shortening time for hearing a motion for reconsidera tion and a renewed motion to amend the pleading to conform to proof, as well as a stay of the proceedi ngs to file regularly noticed motions. However, on August 22, 2011, the tr ial court entered an order granting the motion for judgment and judgment in favor of Adger and Shadow Hills. On September 1, 2011, Porter filed a motion for reconsid eration based on new facts and her renewed request to amend the comp laint to conform to proof. She also filed a motion for a new trial. In support of th e motions, Porter submitted the declaration of her attorney, Dawn Simon. During discovery, Los Angele s Adult Protective Services (APS) informed Simon that due to the privacy require ments of the Welfare and Institutions Code, Sim on would be allowed to intervie w APS agents only at trial and documents could be released by subpoena only to a court for trial. However, after the trial court granted summary judgment in favor of Adger and Shadow Hills, Simon confirmed that Adger told an APS agent during an interview that the eviction would not proceed, because Olsen had moved out. Adger made th e misrepresentation to induce

Porter not to attend the unlawful deta iner trial and she did not attend. Porter submitted a proposed second am ended complaint. In the proposed complaint, the elder abuse cause of action alle ged that Adger took financial advantage of Porter by fabricating reasons for eviction a nd telling Porter that no eviction would take place because she had complied with the notice. Because Adger said the eviction would not take place, Porter did not attend the court proceedings a nd Adger obtained the eviction judgment against her. Porter was depr ived of her property, because Adger knew about, ratified and encouraged Porter’s ag reement with Adger’s son. The proposed complaint also added a cause of action for ab use of process based on Adger’s use of the eviction process. The cause of action for in tentional infliction of emotional distress was substantially similar to the operative complaint.7 Adger and Shadow Hills opposed the mo tion for reconsideration and request to amend the complaint. They filed objections to Simon’s declaration on the grounds that the statements were hearsay, speculation, conclusory, and argumentative, and lacked

foundation. A hearing was held on October 4, 2011. The trial court conc luded that it lacked jurisdiction, because judgment had been entered and insufficient grounds existed for a

new trial. The court found Porter failed to present admissible evidence to support her claims and failed to present newly discovered f acts or errors of law. The explanation for the alleged late evidence was insufficient. As for the motion to amend, it was procedurally deficient. Even if procedural rules had been complie d with, there was an insufficient showing to warrant relief. The court denied the motions. On November 14, 2011, Po rter filed a notice of appeal from the order “of 9 August 2011 . . . of which notice was given on 14 September, 2011[.]” In the interests of justice and judicial economy, and because the parties ha ve not raised any issue concerning the notice of appeal, we deem the appeal to have been taken from the August 22, 2011 judgment.

DISCUSSION

Motion for Summary Judgment

Porter does not appear to contend th at the motion for summary judgment should

have been denied based on th e allegations of the operative complaint or the evidence

submitted in connection with the motion. It is clear that th e motion for summary judgment was properly granted. Summary judgment is appropriate “if all the papers submitted show that there is no triable issue as to any material fact and th at the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437 c, subd. (c).) “The moving party bears the

burden to demonstrate ‘that there is no triable issue of material fact and that [it] is entitled8 to judgment as a matter of law.’ [Citation. ] If the moving party makes a prima facie showing, the burden shifts to the party o pposing summary judgment ‘to make [its own] prima facie showing of the existence of a tr iable issue of material fact.’ [Citation.]

‘There is a triable issue of material fact if, and only if, the ev idence would allow a

reasonable trier of fact to find the underlying fact in fa vor of the party opposing the

motion in accordance with the applicable standard of proof.’ [Citation.]” ( Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1246.) We review summary judgment orders de novo. ( Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860.) The operative complaint alleged causes of action against Adger and Shadow Hills based on Porter’s agreement with Adger’s son and Porter’s access to her personal property. However, Adger and Sh adow Hills were not parties to the purchase agreement. There was no evidence suggestin g that Adger or Shadow Hills had anything to do with the agreement. The evidence s howed that Porter willfully vi olated park rules by housing guests for extended periods of time without obtaining perm ission and was evicted based on her own violation of the park rules. In addition, Porter’s agen ts were permitted to retrieve her belongings. No evidence was pres ented showing a triable issue of fact as to the causes of action alleged in the compla int. Therefore, summary judgment was properly granted.

Denial of Continuance

Porter contends that the trial court should have considered her motion for reconsideration as a request for a con tinuance under Code of Civil Procedure section 437c, subdivision (h), because she showed that facts essential to justify opposition to the motion for summary judg ment existed, but could not be presented. We find no

abuse of discretion. Code of Civil Procedure section 437c, s ubdivision (h), provides in pertinent part, “If it appears from the affidavits submitte d in opposition to a motion for summary judgment . . . that facts esse ntial to justify opposition may exist but cannot, for reasons9 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.” The declaration submitted in opposition to the motion for summa ry judgment must show: “‘(1) the facts to be obtained are esse ntial 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. [Citations.]’ [Citation.]” ( Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 254.) The oppos ing party’s lack of diligence in pursuing discovery is a factor that the trial court may consider in denying relief under Code of Civil Procedure section 437c, subdivision (h). ( Id. at p. 257.)

“The statute mandates a continuance of a summary judgment hearing upon a good faith showing by affidavit that additional time is needed to obta in facts essential to justify opposition to the motion. [Citations.] Cont inuance 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 [Code of Civil Procedure] section 437c, subdivision (h). [Citations.] Thus, in the absence of an affidavit that requires a continuance under [Code of Civil Procedure] section 437c, subdivision (h), we review the trial court’s denial of appellant’s request for a continuance for abuse of discretion. [Citation.]” ( Cooksey v. Alexakis, supra, 123 Cal.App.4th at pp. 253-254.) In this case, Porter incorrectly contends that the testimony of an APS agent was necessary to oppose the motion for summary judgment, but coul d not be obtained due to APS policies. Before Porter filed the complaint in this ac tion, she knew whether she had failed to attend the unlawful detainer procee dings based on a repres entation by Adger that the eviction would not go forward. She failed to include any allegation about a misrepresentation in the oper ative complaint. She could have timely opposed the motion for summary judgment with her own declaration stati ng that she relied on a misrepresentation by Adger. Porter failed to show that the testimony of an APS agent was necessary to oppose th e motion for summary judgme nt. We find no abuse of10 discretion in denying Porter’s motion under Code of Civil Procedure section 437c, subdivision (h).

Denial of Leave to Amend

On appeal, Porter contends the trial cour t did not allow her to amend the complaint to allege that Adger was the party in control of her eviction, rather than Adger’s son. We

find no abuse of discretion in the trial court’s denial of leave to amend. “The trial court, ‘in furtherance of jus tice,’ may allow amendment of a pleading. [Citation.] Although there is a strong policy in favor of liber al allowance of amendments,

the trial court’s discretion will not be dist urbed on appeal unless it clearly has been abused. [Citation.]” ( Foxborough v. Van Atta (1994) 26 Cal.App.4th 217, 230.) “In denying leave to amend, the trial court may properly consider whether the subject matter of the amendment is objectionable, the condu ct of the moving party, and the belated presentation of the amendm ent. [Citation.]” ( Del Mar Beach Club Owners Assn. v. Imperial Contracting Co. (1981) 123 Cal.App.3d 898, 914.) In this case, Porter did not request leav e to amend until a few weeks prior to trial, when she was likely to lose the motion for su mmary judgment. We note that she did not request leave to amend to allege that Adger instituted and controlled the eviction proceedings. She requested l eave to amend to add a new cau se of action for abuse of process, based on Adger’s use of the unlawf ul detainer proceedings for an improper purpose. However, Porter’s argument in th e trial court failed to address evidence showing that Adger had no financial interest in Porter’s eviction and failed to explain how Adger’s purpose was improper. Not only was her request untimely, but she failed to explain her lack of diligence in requesting leave to amend. The trial court did not abuse its discretion in denying her request to ame nd her complaint at the hearing on the motion for summary judgment.

In Porter’s motion for rec onsideration, she requested leave to amend to allege new causes of action for abuse of process and elder abuse based on new facts that Adger11 misrepresented the status of the unlawf ul detainer proceedi ngs and Adger had a restraining order against Olsen. However, these facts were known to Porter and her coplaintiff Olsen at all times and there was no explanation for the lack of diligence in presenting these claims. As discussed abov e, summary judgment was properly granted on the ground that no triable issue of fact exis ted. It would have been highly prejudicial to Adger and Shadow Hills to allow Porter to file an am ended complaint that simply avoided the summary judgment ruling. The trial court did not abuse its discretion in denying Porter’s request to file an amended complaint.

DISPOSITION

The judgment is affirmed. Respondent s Joanne Adger and Sh adow Hills Mobile Home Park are awarded their costs on appeal.

KRIEGLER, J.

We concur:

TURNER, P. J.

ARMSTRONG, J.