Unreported / Non-Citable
Background
Anula Mallika Dharmakirthi, then 88, fell down three stairs leading from the entryway of a Bell Canyon home at 6 Colt Lane to a sunken living room while attending a July 2024 open house. She and three family members who witnessed the fall—her daughter, granddaughter, and the daughter's partner—sued homeowner Aysegul Goren and several Coldwell Banker entities for negligence and premises liability. Plaintiffs alleged that the unmarked, uniformly dark stairs created a concealed and dangerous elevation change, that defendants had actual or constructive notice of the hazard, and that they failed to repair, mitigate, or warn of the dangerous condition. The other three plaintiffs alleged they suffered severe psychological stress from witnessing the fall.
After the trial court granted mandatory trial preference under Code of Civil Procedure section 36 based on Dharmakirthi's age and medically fragile condition and set trial for March 16, 2026, Coldwell Banker filed a motion for summary judgment on November 24, 2025. The motion relied on declarations from Goren and agent Katherine Stark denying knowledge of any prior falls, evidence that approximately 60 prospective buyers and agents had visited the property without reported stair incidents, and a biomechanics consultant's opinion that applicable building codes did not require handrails or stair markings for the three-riser stairway. Plaintiffs opposed with deposition testimony describing how they saw only flat, jet-black flooring before the fall and an expert declaration from a human factors engineer opining that the three-riser transition was dangerous and lacked visual conspicuity. Their expert had not inspected the property and instead relied on listing photographs, deposition transcripts, and an uncertified rough draft of Goren's deposition.
The Court’s Holding
The Court of Appeal expressly declined to decide whether Coldwell Banker was entitled to summary judgment on the notice element or whether plaintiffs had established a triable issue regarding a dangerous condition. Instead, it reversed because the trial court abused its discretion in denying plaintiffs' request to continue the summary judgment proceedings so their expert could inspect the property. Under Code of Civil Procedure section 437c, subdivision (h), when affidavits submitted in opposition show 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 or discovery, or make any other just order. The required showing must demonstrate the essential facts sought, reason to believe they exist, and why additional time is needed to obtain them.
Plaintiffs' counsel explained in declarations that their expert needed to compare the stairs' in-person appearance with Coldwell Banker's listing photographs to establish the alleged dangerous condition, and that Goren's extended absence abroad prevented any inspection until approximately two weeks after the opposition deadline. The appellate court emphasized that Coldwell Banker did not dispute that an in-person inspection was essential to justify plaintiffs' opposition, and indeed had attacked the expert for relying on unauthenticated photographs without visiting the property while simultaneously urging denial of a continuance to allow that very inspection. Although Coldwell Banker invoked lack of diligence, the court distinguished Cooksey, FSR Brokerage, and Rodriguez v. Oto as cases where denial was not based on lack of diligence alone. Even assuming plaintiffs could have inspected earlier, their particularized explanation of the timing made the denial an abuse of discretion, and their successful motion for trial preference did not bar relief under section 437c(h).
Key Takeaways
- A summary judgment continuance is mandatory when the opposing party submits an affidavit showing that essential facts may exist but cannot yet be presented for stated reasons.
- Coldwell Banker's own challenge to the expert's lack of a property inspection reinforced why the requested inspection was essential to plaintiffs' opposition.
- The court distinguished prior cases denying continuances where declarations failed to identify useful discovery or explained neither the expected evidence nor the reason for delay.
- Even possible earlier diligence shortcomings did not justify denial here because counsel specifically identified the necessary discovery and explained why the inspection could not occur before the deadline.
- Trial preference based on age and health did not prevent plaintiffs from obtaining relief under section 437c(h) after satisfying its statutory requirements.
Why It Matters
The decision reinforces California's strong policy of mitigating summary judgment's harshness under Code of Civil Procedure section 437c(h) when a party identifies essential discovery and explains why it cannot be completed before the opposition deadline. The ruling is particularly case-specific because the defendants' own evidentiary objections made an in-person inspection central to the plaintiffs' ability to oppose the motion.
The judgment was reversed and remanded with directions to vacate both the order granting summary judgment and the denial of the continuance, and to conduct further proceedings consistent with the opinion. The remand allows plaintiffs an opportunity to request an inspection of the property, and appellants are entitled to recover costs on appeal. The appellate court expressly left the merits of the summary judgment undecided and expressed no opinion on them.