1

Filed 7/7/21 Braganza v. Albertson’s CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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 TWO

LISA BRAGANZA,

Plaintiff and Appellant,

v.

ALBERTSON’S LLC,

Defendant and Respondent.

E073073

(Super.Ct.No. CIVDS1724021)

OPINION

APPEAL from the Superior Court of San Bernardino County. Keith D. Davis, 

Judge. Affirmed. 

Carpenter, Zuckerman & Rowley and Greg Coolidge for Plaintiff and Appellant.

Berman, Berman, Berman, Schneider & Lowary, Mark E. Lowary and Gina M. 

Genatempo for Defendant and Respondent. 

I. INTRODUCTION

Plaintiff Lisa Braganza sued defendant Albertson’s LLC (Albertson’s) for 

personal injuries and other damages plaintiff sustained as a result of slipping and falling 

on the floor of an Albertson’s grocery store. The trial court granted Albertson’s motion 
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for summary judgment after denying plaintiff’s request to continue the hearing on the 

motion in order to allow plaintiff time to conduct discovery necessary to oppose the 

motion. (Code Civ. Proc., § 437c, subd. (h).)

1

 The trial court later denied plaintiff’s 

motion for a new trial, based on her claim that the court abused its discretion in denying 

her continuance request. (See § 657, subds. 1, 7.) In this appeal from the judgment in 

favor of Albertson’s, plaintiff claims the trial court abused its discretion (1) in denying 

her request to continue the hearing on Albertson’s motion, and (2) in denying her new 

trial motion. We find no abuse of discretion in either ruling, and we affirm the judgment.

II. FACTS AND PROCEDURE

A. Albertson’s Motion for Summary Judgment or, Alternatively, Summary Adjudication

and Plaintiff’s Request to Continue the Hearing on the Motion (§ 437c, subd. (h))

On December 5, 2017, plaintiff filed her operative complaint against Albertson’s, 

alleging she sustained personal injuries and other damages as a result of slipping and 

falling on the floor of an Albertson’s grocery store on May 31, 2016. The complaint 

alleged two causes of action: premises liability (first) and general negligence (second). 

On December 29, 2017, Albertson’s filed an answer to the complaint, denying its 

allegations and asserting various affirmative defenses. 

On December 18, 2018, Albertson’s filed its motion for summary judgment on 

plaintiff’s complaint or, alternatively, summary adjudication of each of plaintiff’s two 

1

 Undesignated statutory references are to the Code of Civil Procedure. 
3

causes of action. In its separate statement of undisputed material facts, Albertson’s 

adduced the following facts, supported by evidence: 

On May 31, 2016, plaintiff entered the Albertson’s grocery store identified in her 

complaint and “immediately walked toward a floral shop/display positioned on [a] 

carpet/mat to one side of the south-east side entrance. [¶] Plaintiff fell at approximately 

5:40 to 5:50 p.m. when her right ankle twisted. [¶] Immediately preceding her fall, 

[p]laintiff was looking forward and did not observe the floor or any dangerous condition 

or defect. [¶] Following her fall, plaintiff observed water on the floor, and a flower 

bucket or vase tipped over more than a foot onto the adjacent mat/carpet. [¶] Another 

patron, Ken K., observed the floor just prior to and following the fall, and did not see any 

water on the floor prior to plaintiff’s fall. [¶] Other patrons in the area in the several 

minutes preceding the incident walked through the area safely without incident and 

without reporting any water or other condition. [¶] The area was lit by natural light from 

outside as well as inside lighting. [¶] Plaintiff does not attribute the incident to any 

condition other than the alleged water on the floor.

“The walkway surface in the area of [plaintiff’s] described slip and fall provides 

sufficient friction, or traction, and is not consistent with a slippery walkway surface 

where a slip and fall would be anticipated. [¶] [Albertson’s] had conducted regular 

inspections and documented hourly sweeps of the area, with the last formal sweep 

recorded on an inspection log as having begun at 5:09 p.m., with the subject floral area 

sweep at approximately 5:18 [p.m.] as recorded on surveillance video. [¶] Between 

sweeps, Albertson’s employees and other patrons constantly walked through the store, 
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including the subject floral area, and no one had observed any water on the floor prior to 

the incident. [¶] Video surveillance recorded [an] Albertson’s employee walking 

through the area at approximately 5:27 p.m. There were no prior incidents or complaints

regarding the same area of [the] store.” 

Based on these facts, Albertsons claimed that plaintiff could not establish her 

premises liability or negligence causes of action for three reasons: (1) at the time 

plaintiff fell, the floor in the area of the fall was not unsafe because it was not wet with 

water from a tipped flower vase, as plaintiff had claimed during discovery; (2) the floor 

was not unsafe, even if it was wet at the time of the fall, because Albertson’s expert

forensic engineer, Bradley A. Rutledge, concluded based on a “coefficient of friction 

test” that the floor provided sufficient friction or traction to prevent falls, even when wet 

with water; and (3) Albertson’s had neither actual nor constructive notice that the floor 

was wet when plaintiff fell because its employees inspected the floor hourly, and an 

employee found no water on the floor while inspecting it at 5:18 p.m., only 22 to 

32 minutes before plaintiff fell between 5:40 and 5:50 p.m.

At the time Albertson’s motion was filed, the hearing on the motion was scheduled 

for March 6, 2019. Thus, plaintiff’s opposition was required to be filed and served no 

later than February 20—14 days before the March 6 hearing. (§ 437c, subd. (b)(2).) But 

plaintiff did not file any opposition to the motion. Instead, on February 19, plaintiff filed

a request to continue the March 6 hearing for 45 days, along with a supporting 

declaration of plaintiff’s counsel, Greg Coolidge. 
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Mr. Coolidge averred in his declaration that the continuance was necessary (1) in 

order to allow plaintiff’s expert forensic engineer to conduct a coefficient of friction test

on the floor area where plaintiff fell, and (2) to allow plaintiff’s expert time to prepare a 

declaration in opposition to Albertson’s motion. Mr. Coolidge explained that, in the 

absence of plaintiff’s own expert’s coefficient of friction test, plaintiff did not have 

evidence to oppose the second ground of Albertson’s motion. 

Mr. Coolidge showed that on February 4, 2019, plaintiff served an inspection 

demand on Albertson’s, demanding to inspect and test the floor in the area where plaintiff

fell. (§ 2031.010.) The inspection demand was noticed to occur on March 12, 2019,

six days after the previously scheduled March 6 hearing on Albertson’s motion. Mr. 

Coolidge explained that the March 12 inspection date was necessary in order to provide 

Albertson’s with the statutory 30-day notice for a site inspection (§ 2031.030, 

subd. (c)(2)), and Mr. Coolidge anticipated that the March 12 inspection, and a 

subsequent report by plaintiff’s expert, would show that the floor in the area of plaintiff’s 

fall was “unreasonably slippery and unsafe when wet with water.” 

Relying on Frazee v. Seely (2002) 95 Cal.App.4th 627 (Frazee) and Bahl v. 

Bank of America (2001) 89 Cal.App.4th 389 (Bahl)), Mr. Coolidge argued that the 

requested continuance was mandatory under section 437c, subdivision (h), because his 

declaration made the three-part showing necessary to obtain a mandatory continuance 

under the statute: (1) facts to be discovered (through plaintiff’s pending inspection 

demand) were essential to opposing the motion; (2) there was reason to be believe these 

facts existed; and (3) additional time was needed to discover these facts.
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Mr. Coolidge did not attempt to explain what evidence plaintiff had to oppose the 

first and third grounds of Albertson’s motion. Nor did he explain why plaintiff waited 

until February 4, 2019—around six weeks after Albertson’s motion was filed and served 

on December 18, 2018—to serve plaintiff’s inspection demand, the results of which were 

relevant only to the second ground of Albertson’s motion. Albertson’s filed an 

opposition to plaintiff’s continuance request. 

B. The March 6, 2019 Hearing

At the March 6, 2019 hearing, the trial court first addressed plaintiff’s request to 

continue the March 6 hearing.2 The court observed that Mr. Coolidge’s declaration did 

not explain why plaintiff’s counsel had waited until February 4, 2019, to serve plaintiff’s 

inspection demand, nor did it explain why plaintiff’s counsel had waited until February 

19, 2019—the day before plaintiff’s opposition was due—to file the request to continue 

the hearing. The court also noted that Albertson’s expert had inspected the floor area on 

November 8, 2018, and this, together with Albertson’s motion, should have alerted 

plaintiff’s counsel to the need to have plaintiff’s own expert inspect and test the floor area

“at the earliest possible time.” 

The trial court found it “troubling” that Mr. Coolidge’s declaration did not indicate 

that plaintiff’s counsel, including Mr. Coolidge, had made any attempt to communicate

with Albertson’s counsel in order to complete plaintiff’s site inspection and testing as 

2

 Plaintiff was represented by Carpenter, Zuckerman & Rowley in prosecuting her 

complaint against Albertson’s. Attorney Mario Martinez represented plaintiff at the 

March 6, 2019 hearing. 
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soon as possible after Albertson’s filed and served its motion. The court pointed out that 

section 437c, subdivision (h), was not intended to allow parties to obtain continuances to 

conduct discovery “that could have and should have been undertaken earlier so as to 

effectively oppose the summary judgment motion.” 

Attorney Mario Martinez, who represented plaintiff at the hearing, explained that 

plaintiff’s counsel had “originally noticed” plaintiff’s inspection demand “in the summer 

of 2018.” Then, after plaintiff’s counsel received Albertson’s objections to the inspection 

demand, plaintiff’s counsel’s “usual” expert forensic engineer notified plaintiff’s counsel 

that there was a potential conflict of interest that would prevent the engineer from 

conducting the floor inspection and testing for plaintiff. Thus, plaintiff’s counsel began 

“trying to get another forensic engineer.” 

Mr. Martinez further explained that “sometime while” plaintiff’s counsel was 

trying to get a new expert forensic engineer for plaintiff, plaintiff’s counsel received 

Albertson’s motion. At some point thereafter—Mr. Martinez did not say when—

plaintiff’s counsel determined that their “usual” expert did not have an actual conflict of 

interest in working on plaintiff’s case. Thereafter, on February 4, 2019, plaintiff’s 

counsel noticed plaintiff’s site inspection for March 12, 2019. Albertson’s then notified 

plaintiff’s counsel that the subject flooring where plaintiff fell had been removed, but 

Albertson’s would make “pieces of the tile floor” on which plaintiff fell available for 

plaintiff’s expert’s inspection and testing on March 12, along with other areas of the store 

which still had the same tile floor. 
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In response, Albertson’s counsel first argued that the trial court should not 

consider any of the “new information” provided by Mr. Martinez at the hearing, as none 

of that information had been timely and properly presented in a declaration. Second, 

Albertson’s counsel argued that Mr. Martinez’s explanation did not answer the court’s 

questions concerning the lack of diligence exercised by plaintiff’s counsel in completing 

the floor inspection and testing. Third, Albertson’s counsel noted that plaintiff’s counsel 

had not explained what evidence plaintiff had that would raise a triable issue of material 

fact on the third ground for Albertson’s motion: that Albertson’s did not have actual or 

constructive notice that there was water on the floor at the time plaintiff fell. Plaintiff’s 

pending inspection would not “go to that issue.” 

The trial court denied plaintiff’s requested continuance. The court’s written order 

denying the continuance states, “The court finds that [p]laintiff’s [r]equest to [c]ontinue 

fails to demonstrate diligence in seeking discovery, including any desired site inspection, 

and that Plaintiff failed to adequately communicate with defense counsel regarding the

need for a site inspection to support any opposition to defendant’s motion. Plaintiff’s 

request to continue is therefore DENIED.” 

Regarding the merits of Albertson’s unopposed motion, the trial court ruled that 

the motion had merit because it showed that Albertson’s “had neither actual nor 

constructive notice of the allegedly wet floor that plaintiff slipped on.” The court pointed 

to Albertson’s uncontroverted evidence that one of its employees had cleaned the floor 

area where plaintiff fell at 5:18 p.m. on May 31, 2016, only 22 to 32 minutes before 

plaintiff fell between 5:40 and 5:50 p.m. 
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C. Plaintiff’s New Trial Motion

The trial court entered judgment in favor of Albertson’s on April 29, 2019, and 

Albertson’s served notice of entry of the judgment on May 3. Plaintiff timely filed a 

notice of intention to move for a new trial (§ 659, subd. (a)(2)), followed by her new trial 

motion, which was based solely on her claim that the trial court abused its discretion, or 

erred as a matter of law, in denying her request to continue the March 6, 2019 hearing. 

(See § 657, subds. 1, 7.) Albertson’s opposed the new trial motion, and the court denied 

it following a June 17 hearing. Plaintiff timely appeals from the April 29 judgment. 

III. DISCUSSION

A. Plaintiff’s Request to Continue the March 6, 2019 Hearing Was Properly Denied

Plaintiff first claims that the trial court erroneously denied her request to continue 

the March 6, 2019 hearing on Albertson’s motion on the sole ground that she did not 

show she (or her counsel) acted with diligence in attempting to have her expert complete 

the inspection and testing of the floor area on which she fell, as soon as possible after 

Albertson’s filed and served its motion for summary judgment or, alternatively, summary 

adjudication on December 18, 2018. For the reasons we explain, the trial court did not 

abuse its discretion in denying the requested continuance. 

Section 437c, subdivision (h), provides: “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, be 

presented, the court shall deny the motion, order a continuance to permit affidavits to be 

obtained or discovery to be had, or make any other order as may be just. The application 
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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.” 

The decision to grant or deny a continuance request under section 437c, 

subdivision (h), is vested in the trial court’s discretion (Frazee, supra, 89 Cal.App.4th at 

p. 633), and the court’s ruling is reviewed for an abuse of discretion. (Chavez v. 24 Hour 

Fitness USA, Inc. (2015) 238 Cal.App.4th 632, 643.) Continuance requests under 

section 437c, subdivision (h), are to be liberally granted. (Bahl, supra, 89 Cal.App.4th 

p. 395; Dee v. Vintage Petroleum, Inc. (2003) 106 Cal.App.4th 30, 34-35.) “[T]he 

interests at stake are too high to sanction the denial of [such] a continuance [request] 

without good reason.” (Frazee, at p. 634.) These interests include the importance of 

deciding cases on their merits rather than on procedural deficiencies. (Bahl, at pp. 398-

399.) 

Given the high stakes involved in motions for summary judgment and summary 

adjudication, continuances under section 437c, subdivision (h), are “virtually mandated 

‘ “upon a good faith showing by affidavit that a continuance is needed to obtain facts 

essential to justify opposition to the motion.” ’ ” (Bahl, supra, 89 Cal.App.4th at pp. 395, 

398-399; Johnson v. Alameda County Medical Center (2012) 205 Cal.App.4th 521, 532

(Johnson) [“ ‘When a party makes a good faith showing by affidavit demonstrating that a 

continuance is necessary to obtain essential facts to oppose a motion for summary 

judgment, the trial court must grant the continuance request.’ ”].) The affidavit is 

required to show that “ ‘(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 
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time is needed to obtain [or discover] these facts.’ ” (Frazee, supra, 95 Cal.App.4th at 

p. 633, quoting Wachs v. Curry (1993) 13 Cal.App.4th 616, 623; see Ace American Ins. 

Co. v. Walker (2004) 121 Cal.App.4th 1017, 1023.)3 

Plaintiff claims her requested 45-day continuance of the March 6, 2019 hearing

was “mandatory” because her counsel, Mr. Coolidge’s, declaration made the necessary 

showing to trigger a mandatory continuance under section 437c, subdivision (h). 

(Frazee, supra, 95 Cal.App.4th at p. 633.) Specifically, plaintiff claims that 

Mr. Coolidge’s declaration showed that the continuance was necessary to allow 

plaintiff’s expert to complete the inspection and “coefficient of friction” testing of the 

floor area on which she fell, and to prepare a declaration in opposition to Albertson’s 

motion explaining that the testing showed that the floor was unreasonably slippery when 

wet with water. 

We agree, and the trial court acknowledged, that plaintiff’s own expert inspection, 

testing, and declaration concerning the slipperiness of the floor area was essential to 

justify plaintiff’s opposition to the second ground for Albertson’s motion. Albertson’s 

supported the second ground for its motion with the declaration of Albertson’s expert, 

3

 One other case has stated that the affidavit “should show the following:

(1) ‘Facts establishing a likelihood that controverting evidence may exist and why the 

information sought is essential to opposing the motion’; (2) ‘The specific reasons why 

such evidence cannot be presented at the present time’; (3) ‘An estimate of the time

necessary to obtain such evidence’; and (4) ‘The specific steps or procedures the 

opposing party intends to utilize to obtain such evidence.’ ” (Johnson, supra,

205 Cal.App.4th 521, 532, italics omitted.) This formulation of the necessary showing is 

a more specific iteration of the one articulated in Frazee, supra, 95 Cal.App.4th at 

page 633, but the two are substantially the same. 
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Mr. Rutledge, who inspected and tested the floor on November 8, 2018, and concluded, 

based on his coefficient of friction test, that the floor was “not consistent with a slippery 

walkway surface where a slip and fall would be anticipated.” As the trial court said, 

plaintiff could only “effectively rebut” Mr. Rutledge’s opinion with another expert’s 

contrary opinion.

But as the trial court pointed out, Mr. Coolidge’s declaration did not explain why 

plaintiff’s expert testing was not completed before plaintiff’s opposition to Albertson’s 

motion was due on February 20, 2019. Mr. Coolidge’s declaration did not attempt to 

address why plaintiff’s expert inspection, testing, and declaration were not completed 

before February 20. Nor did Mr. Martinez, who represented plaintiff at the March 6 

hearing, explain why it took Messrs. Coolidge and Martinez, and plaintiff’s other counsel 

over six months, from “the summer of 2018” through February 4, 2019, to ascertain that 

their “usual” expert did not have an actual conflict of interest in completing the 

inspection and testing for plaintiff. 

Plaintiff argues that the trial court erroneously denied her continuance request 

solely on the ground that her counsel did not show they acted with diligence in attempting 

to complete plaintiff’s expert inspection, testing, and declaration “at the earliest possible 

time” after Albertson’s filed and served its motion on December 18, 2019. Relying on 

Bahl and Frazee, plaintiff argues that a lack of diligence in completing discovery that is 

necessary to oppose a summary judgment or summary adjudication motion is an 

impermissible ground for denying a continuance request under section 437c, 

subdivision (h). 
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In Bahl, our colleagues in Division Three of this court questioned whether a 

party’s lack of diligence in completing discovery necessary to oppose a motion for 

summary judgment or summary adjudication should be a factor in granting or denying 

the party’s continuance request under section 437c, subdivision (h). (Bahl, supra,

89 Cal.App.4th at pp. 397-400.) The Bahl court specifically “question[ed] whether 

diligence alone should make or break a continuance request” under the statute, given that 

the statute does not mention “the issue of discovery diligence.” (Bahl, at p. 398.) To the 

Bahl court, the statute’s failure to mention a party’s diligence in seeking the necessary 

discovery raised “obvious doubts” about the relevance of a party’s “discovery diligence”

to the party’s request for a continuance under section 437c, subdivision (h). (Ibid.) 

The Bahl court concluded that, “when a party submits an affidavit demonstrating 

that facts essential to justify opposition may exist but have not been presented to the court 

because the party has not been diligent in searching for the facts through discovery, the 

court’s discretion to deny a continuance is strictly limited.” (89 Cal.App.4th at p. 398,

italics added.) The court pointed out that “the strong public policy favoring disposition 

[of cases] on the merits outweighs the competing policy favoring judicial efficiency” 

when these policies “collide head-on.” (Ibid.) The court also emphasized that, in the 

case before it, there was no indication that the party moving for summary judgment, the 

defendant, had suffered any prejudice “on account of [the] plaintiff’s due diligence 

deficit.” (Id. at p. 399.) Nor was there any showing of “a special reason to protect the 

trial date.” (Ibid.) 
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Ultimately, the Bahl court concluded that, “[e]ven were plaintiff’s counsel wanting 

in diligence, where, as here, counsel makes some showing of excusable neglect, the 

policy favoring disposition on the merits outweighs the policy favoring judicial 

efficiency.” (89 Cal.App.4th at pp. 399-400.) Thus, the court concluded that the trial 

court had “exceeded the bounds of its limited discretion” in denying the plaintiff’s 

request to continue the hearing on the summary judgment motion. (Id. at p. 400.) 

In Frazee, the court flatly observed that “Section 437c, subdivision (h) allows for 

further discovery to properly oppose the motion, regardless of discovery conducted for 

trial.” (Frazee, supra, 95 Cal.App.4th at p. 635, italics added, citing Bahl, supra,

89 Cal.App.4th at p. 397 [“As we noted in Bahl . . . , the statute makes no mention of a 

need to show diligence, ‘which raises obvious doubts about its relevance’ ” to the 

continuance request].) But, in Frazee, a legal malpractice action, the court concluded 

that the plaintiff made a sufficient showing that her counsel acted with diligence in 

attempting to complete the depositions of several attorney defendants, which the court 

described as “a logistics nightmare” given the attorneys’ busy schedules. (Frazee, at 

pp. 631-632, 635.) 

In Cooksey v. Alexakis (2004) 123 Cal.App.4th 246 (Cooksey), at pages 255 to 

257, the Second District Court of Appeal, Division Five, observed that there was a split 

of opinion among the California appellate courts “as to the effect of the absence of such 

an explanation” of why discovery was not completed sooner, when a party seeks a 

continuance under section 437c, subdivision (h). (Cooksey, at p. 255.) That split of 

authority continues to this day. The Cooksey court noted that the courts in the First, 
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Second, and Sixth Appellate Districts had upheld denials of continuance requests, at least 

partly on the ground that the party seeking the continuance had adequate time to complete 

the discovery. (Id. at pp. 255-256, citing and discussing FSR Brokerage, Inc. v. 

Superior Court (1995) 35 Cal.App.4th 69, 76, Wachs v. Curry (1993) 13 Cal.App.4th 

616, 624, O’Laskey v. Sortino (1990) 224 Cal.App.3d 241, 251, A & B Painting and 

Drywall, Inc. v. Superior Court (1994) 25 Cal.App.4th 349, 356-357, and Desaigoudar v. 

Meyercord (2003) 108 Cal.App.4th 173, 191.) 

In contrast, the Cooksey court noted that the court in Bahl had questioned the 

relevancy of a party’s diligence in seeking discovery to the party’s request for a

continuance under section 437c, subdivision (h), and that the same court in Frazee

“suggested in dicta that a party’s diligence in completing discovery is not relevant at all

in considering whether to grant or deny a request for continuance.” (Cooksey, supra, 

123 Cal.App.4th at pp. 255-257, italics added.) Cooksey parted company with Bahl and 

Frazee and agreed “with the majority of courts holding that lack of diligence may be a 

ground for denying a request for a continuance of a summary judgment motion hearing.” 

(Cooksey, at p. 257.) 

Cooksey reasoned that, “[a]lthough [section 437c, subdivision (h)] does not 

expressly mention diligence, it does require a party seeking a continuance to declare why 

‘facts essential to justify opposition . . . cannot, for reasons stated, then be presented’

(§ 437c, subd. (h), italics added), and courts have long required such declarations to be 

made in good faith. [Citations.] There must be a justifiable reason why the essential 

facts cannot be presented. An inappropriate delay in seeking to obtain the facts may not 
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be a valid reason why the facts cannot then be presented. The statute itself authorizes the 

imposition of sanctions for declarations presented in bad faith or solely for purposes of 

delay. (§ 437c, subd. (j).) A good faith showing that further discovery is needed to 

oppose summary judgement requires some justification for why such discovery could not 

have been completed sooner.” (Cooksey, supra, 123 Cal.App.4th at p. 257; see 

Rodriguez v. Oto (2013) 212 Cal.App.4th 1020, 1038-1039.) 

We agree with the Cooksey court’s conclusion that a party who seeks a 

continuance under section 437c, subdivision (h), must show why the discovery necessary 

to oppose the motion for summary judgment or summary adjudication could not have 

been completed sooner, and accordingly requires the court to grant the continuance. 

(Cooksey, supra, 123 Cal.App.4th at p. 257.) This showing was not made here. 

Mr. Coolidge made no attempt to show, in his declaration in support of plaintiff’s 

continuance request, why the inspection and testing of the floor area by plaintiff’s expert, 

and the expert’s declaration in opposition to Albertson’s motion, could not have been 

completed before plaintiff’s opposition to Albertson’s motion was due on 

February 20, 2019. Nor did Mr. Coolidge, in his declaration, or Mr. Martinez, at the 

March 6 hearing, explain why plaintiff’s counsel waited until February 4, 2019—around 

six weeks after Albertson’s motion was filed and served on December 18, 2018—to serve 

plaintiff’s inspection demand on Albertson’s, which scheduled plaintiff’s expert 

inspection and testing for March 12, 2019, six days after the March 6 hearing on 

Albertson’s motion. For these reasons, the trial court did not abuse its discretion in 

denying plaintiff’s continuance request under section 437c, subdivision (h), based solely
17

on her plaintiff’s counsel’s failure to show diligence in completing the necessary floor 

inspection and testing. (Cooksey, at p. 257.)

4

Plaintiff argues that the trial court abused its discretion in denying her requested 

45-day continuance because Albertson’s did not show that it would have been prejudiced 

by the brief continuance, given that no trial date had been set as of March 6, 2019. (See 

Bahl, supra, 89 Cal.App.4th at p. 399.) But no such showing of prejudice was required. 

As Cooksey explained, “A good faith showing that further discovery is needed to oppose 

summary judgment requires some justification for why such discovery could not have 

been completed sooner.” (Cooksey, supra, 123 Cal.App.4th at p. 257.) This showing is 

necessary to comply with section 437c, subdivision (h)’s requirement that the party 

seeking the continuance “declare why ‘facts essential to justify opposition . . . cannot, for

reasons stated, then be presented.’ (§ 437c, subd. (h), italics added.)” (Cooksey, at 

p. 257.) 

B. Plaintiff’s New Trial Motion Was Properly Denied 

Plaintiff next claims that the trial court abused its discretion or erred as a matter of 

law in denying her new trial motion. We conclude that the motion was properly denied. 

4

 Plaintiff correctly points out that, when a party’s declaration does not meet the 

statutory requirements for a mandatory continuance under section 437c, subdivision (h), 

the trial court may grant a continuance under the “ordinary discretionary standard applied 

to requests for a continuance,” if good cause for the continuance is shown. (Hamilton v. 

Orange County Sheriff’s Dept. (2017) 8 Cal.App.5th 759, 765.) But here, plaintiff does 

not claim that she made a sufficient showing of good cause for a continuance under this 

alternative discretionary standard. 
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1. Relevant Background

In her new trial motion, plaintiff argued only that the trial court erroneously denied 

her request to continue the March 6, 2019 hearing, and this deprived her of a fair trial 

because it prevented her from filing “a substantive opposition” to all three grounds for 

Albertson’s motion for summary judgment or summary adjudication. In support of her 

new trial motion, plaintiff adduced evidence and argument in opposition to all three 

grounds for Albertson’s motion—evidence and argument that she did not proffer in 

opposition to Albertson’s motion.

Regarding the second ground for Albertson’s motion, plaintiff adduced evidence 

that, at the Albertson’s store on March 12, 2019, her expert forensic engineer, Mark 

Burns, completed the inspection and coefficient of friction testing of floor tiles identical 

to the tiles that plaintiff slipped on, and opined that the floor at the time of plaintiff’s fall 

was “excessively slippery to allow for safe ambulation of all store patrons.” Mr. Burns 

further opined that because the area of the “cut-flower display,” where plaintiff was 

walking when she fell, was “a high foot traffic area” near the front of the store, and 

because Albertson’s knew or should have known that water from cut-flower vases could 

be dripped or spilled onto the floor, the standard of care required Albertson’s to install 

slip resistant flooring in that area. Mr. Burns also opined that the standard of care 

required Albertson’s to place a larger mat around its cut-flower display, in order to 

prevent water from the cut-flower vases from being dripped or spilled onto the floor next 

to the mat—the area in which plaintiff fell. 
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Additionally, plaintiff adduced evidence and argument to counter the first and 

third grounds for Albertson’s motion. Specifically, plaintiff claimed there were triable 

issues concerning (1) whether there was water on the floor when plaintiff fell (the first 

ground); and (2) whether Albertson’s had constructive notice of the water on the floor, 

given that its employee cleaned the floor only 22 to 32 minutes before plaintiff fell (the 

third ground). Regarding the third ground, plaintiff argued that, according to applicable 

case law, the 22 to 32-minute time interval was sufficient to allow a jury to determine 

that Albertson’s had constructive notice of the water on the floor when plaintiff fell, 

given that the fall occurred in a high foot-traffic area and near water dripping or spilling 

from cut-flower vases. 

Plaintiff also adduced a declaration of her counsel, Mr. Coolidge, in support of her 

new trial motion. Mr. Coolidge averred that he reviewed Albertson’s motion on 

December 27, 2018. On December 28, 2018, Mr. Coolidge instructed “the attorney 

handling this case” to have Wexco International (Wexco), Mr. Burns’s firm, test the floor 

area and to serve Albertson’s with a 30-day inspection demand so that the testing could 

be completed “by early February 2019.” Around February 2, 2019, Mr. Coolidge 

reviewed the file “to ascertain the status of the site inspection” and learned that it had not 

yet been noticed. 

Mr. Coolidge then “inquired with the handling attorney and his legal assistant” 

and “learned that a potential conflict of interest had existed between Wexco and 

Albertson’s and that Wexco finally confirmed with this firm in late January 2019 that no 

such conflict of interest actually existed.” This delay prevented plaintiff’s counsel from 
20

having Wexco complete the inspection and testing earlier, noticing the site inspection

earlier, and from having Wexco perform the inspection in early February 2019. In order 

to give Albertson’s the required 30-day notice, the inspection and testing could not be 

noticed to occur any earlier than March 12, 2019, six days after the hearing on 

Albertson’s motion for summary judgment or summary adjudication. 

Mr. Coolidge further explained that, on February 22, 2019, he received a letter 

dated February 20 from Albertson’s counsel, confirming that the March 12 date for the 

site inspection and testing was acceptable. Given this letter, Mr. Coolidge “did not 

believe that Albertson’s would oppose a request to continue” the March 6, 2019 hearing, 

and he prepared and filed plaintiff’s written request for the continuance.5 He was 

“surprised” that Albertson’s “thereafter opposed this continuance” and, “[i]n retrospect,” 

he should have asked Albertson’s counsel to stipulate to a continuance. He was also 

surprised when the trial court denied his continuance request. He believed that his earlier 

declaration complied with section 437c, subdivision (h), and he did not believe it was 

necessary to explain why plaintiff’s inspection and testing of the floor had not been 

completed sooner. He apologized for the omission but noted that his current declaration 

explained why plaintiff’s inspection and testing was not completed sooner. 

Mr. Coolidge appeared for plaintiff at the June 17, 2019 hearing on plaintiff’s new 

trial motion. At the hearing, the court noted that plaintiff’s failure to complete the 

5

 On February 22, 2019, Albertson’s counsel served objections to plaintiff’s 

March 12, 2019 inspection demand. Albertson’s counsel did not learn that Mr. Burns had 

completed the March 12, 2019 inspection and testing at the Albertson’s store until she 

received plaintiff’s new trial motion. 
21

inspection and testing by early February 2019 was based on factors wholly within 

plaintiff’s counsel’s control, and when the court denied plaintiff’s continuance request on 

March 6, 2019, it had “no explanation as to why it was counsel had chosen not to have 

this coefficient of friction study done in the [preceding] months, which clearly could have 

happened.” Based on Bahl and Frazee, Mr. Coolidge argued that the court abused its 

discretion in denying plaintiff’s continuance request. Had the court granted the 

continuance, plaintiff could have adduced the evidence and argument that she adduced on 

her new trial motion in opposition to Albertson’s motion. 

The trial court ultimately concluded that it did not abuse its discretion in denying 

the continuance. The court also said that it was not considering the new evidence that 

plaintiff adduced in support of her new trial motion, including Mr. Burns’s expert 

declaration. The court accordingly concluded that there was no legal or factual basis to 

grant the new trial motion (see § 657, subds. 1, 7) and denied the motion. 

2. Analysis

“A motion for a new trial is appropriate following an order granting summary 

judgment.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 858 (Aguilar).) 

“The new trial motion may seek reversal of the summary judgment on ‘any available 

statutory ground for a new trial.’ ” (Wall St. Network, Ltd. v. New York Times Co. (2008) 

164 Cal.App.4th 1171, 1176.) Plaintiff based her new trial motion on the sole ground 

that the trial court abused its discretion, or erred as a matter of law, in denying her request 

to continue the March 6, 2019 hearing on Albertson’s motion for summary judgment or 

summary adjudication. (See § 657, subds. 1, 7.) 
22

Generally, rulings on new trial motions are reviewed for an abuse of discretion. 

(Aguilar, supra, 25 Cal.4th at p. 859.) But in the case of an order denying a new trial 

motion following an order granting summary judgment, the applicable standard of review 

depends on the nature of the trial court’s determinations in denying the new trial motion. 

(Id. at pp. 859-860.) Here, the applicable standard of review is the abuse of discretion 

standard—the same standard that applies to the trial court’s underlying decision to deny 

plaintiff’s requested 45-day continuance of the hearing on Albertson’s motion. (Frazee,

supra, 95 Cal.App.4th at p. 633.) 

As we have explained, the trial court did not abuse its discretion in denying 

plaintiff’s request to continue the March 6, 2019 hearing on Albertson’s motion. In his 

declaration in support of the continuance request, Mr. Coolidge did not explain why 

plaintiff’s expert inspection and testing of the floor area was not completed in time for 

plaintiff to file and serve a substantive opposition to Albertson’s motion by 

February 20, 2019—the date the opposition was due. And, at the March 6 hearing, Mr.

Martinez represented that plaintiff’s counsel learned that plaintiff’s “usual” expert had a 

potential conflict of interest in conducting the inspection and testing after plaintiff’s 

counsel received defendant’s objections to plaintiff’s original inspection demand, which 

was served “in the summer of 2018.” The record shows that Albertson’s counsel served 

those objections by mail on August 21, 2018. Mr. Martinez also indicated that plaintiff’s 

counsel did not determine that their usual expert, Wexco, did not have an actual conflict 

of interest until after plaintiff’s counsel received and reviewed Albertson’s motion in 

December 2018. Thus, even if the trial court could have properly considered 
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Mr. Martinez’s representations at the March 6 hearing, along with Mr. Coolidge’s 

declaration, Mr. Martinez did not explain why plaintiff’s counsel was unable to arrange 

to have another expert forensic engineer conduct the inspection and testing for plaintiff in 

time to file and serve plaintiff’s opposition to Albertson’s motion by its 

February 20, 2019 due date.

Mr. Coolidge’s declaration in support of the new trial motion also failed to explain 

why the inspection and testing was not completed by early February 2019, or in time to 

file a timely opposition to Albertson’s motion by February 20. Mr. Coolidge only 

averred that he did not discover that Wexco had a potential conflict of interest until he 

reviewed plaintiff’s file around February 2. At that time, Mr. Coolidge also discovered 

that Wexco had “finally confirmed” “in late January 2019 that no such conflict of interest 

actually existed.” But neither Mr. Coolidge nor Mr. Martinez ever explained why 

plaintiff’s counsel did not ascertain that Wexco did not have an actual conflict of interest 

and arrange to have a Wexco engineer proceed with the inspection and testing in time for 

plaintiff to file a timely opposition to Albertson’s motion by February 20. Thus, the trial 

court did not abuse its discretion in denying plaintiff’s new trial motion. 
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IV. DISPOSITION 

The April 29, 2019 judgment in favor of Albertson’s on plaintiff’s complaint is 

affirmed. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule

8.278.) 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS

J.

We concur:

MILLER

Acting P.J.

SLOUGH

J.