OPINION
I. INTRODUCTION
Plaintiff Lisa Braganza sued defendant Albertsons LLC (Albertsons) for personal injuries and other damages plaintiff sustained as a result of slipping and falling on the floor of an Albertsons grocery store. The trial court granted Albertsons motion for summary judgment after denying plaintiffs 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).)
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The trial court later denied plaintiffs 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 Albertsons, plaintiff claims the trial court abused its discretion (1) in denying her request to continue the hearing on Albertsons 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. Albertsons Motion for Summary Judgment or, Alternatively, Summary Adjudication and Plaintiffs Request to Continue the Hearing on the Motion (§ 437c, subd. (h))
On December 5, 2017, plaintiff filed her operative complaint against Albertsons, alleging she sustained personal injuries and other damages as a result of slipping and falling on the floor of an Albertsons grocery store on May 31, 2016. The complaint alleged two causes of action: premises liability (first) and general negligence (second). On December 29, 2017, Albertsons filed an answer to the complaint, denying its allegations and asserting various affirmative defenses.
On December 18, 2018, Albertsons filed its motion for summary judgment on plaintiffs complaint or, alternatively, summary adjudication of each of plaintiffs two causes of action. In its separate statement of undisputed material facts, Albertsons adduced the following facts, supported by evidence:
On May 31, 2016, plaintiff entered the Albertsons 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 plaintiffs 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 [plaintiffs] 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. [¶] [Albertsons] 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, Albertsons employees and other patrons constantly walked through the store, including the subject floral area, and no one had observed any water on the floor prior to the incident. [¶] Video surveillance recorded [an] Albertsons 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 Albertsons expert forensic engineer, Mr. R., 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) Albertsons 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 Albertsons motion was filed, the hearing on the motion was scheduled for March 6, 2019. Thus, plaintiffs 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 plaintiffs counsel, Mr. C.
Mr. C. averred in his declaration that the continuance was necessary (1) in order to allow plaintiffs expert forensic engineer to conduct a coefficient of friction test on the floor area where plaintiff fell, and (2) to allow plaintiffs expert time to prepare a declaration in opposition to Albertsons motion. Mr. C. explained that, in the absence of plaintiffs own experts coefficient of friction test, plaintiff did not have evidence to oppose the second ground of Albertsons motion.
Mr. C. showed that on February 4, 2019, plaintiff served an inspection demand on Albertsons, 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 Albertsons motion. Mr. C. explained that the March 12 inspection date was necessary in order to provide Albertsons with the statutory 30-day notice for a site inspection (§ 2031.030, subd. (c)(2)), and Mr. C. anticipated that the March 12 inspection, and a subsequent report by plaintiffs expert, would show that the floor in the area of plaintiffs fall was “unreasonably slippery and unsafe when wet with water.”
Relying on Frazee v. Seely (2002) 95 Cal.App.4th 627, 115 Cal.Rptr.2d 780 (Frazee) and Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 107 Cal.Rptr.2d 270 (Bahl)), Mr. C. 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 plaintiffs 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.
Mr. C. did not attempt to explain what evidence plaintiff had to oppose the first and third grounds of Albertsons motion. Nor did he explain why plaintiff waited until February 4, 2019—around six weeks after Albertsons motion was filed and served on December 18, 2018—to serve plaintiffs inspection demand, the results of which were relevant only to the second ground of Albertsons motion. Albertsons filed an opposition to plaintiffs continuance request.
B. The March 6, 2019 Hearing
At the March 6, 2019 hearing, the trial court first addressed plaintiffs request to continue the March 6 hearing.
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The court observed that Mr. C.s declaration did not explain why plaintiffs counsel had waited until February 4, 2019, to serve plaintiffs inspection demand, nor did it explain why plaintiffs counsel had waited until February 19, 2019—the day before plaintiffs opposition was due—to file the request to continue the hearing. The court also noted that Albertsons expert had inspected the floor area on November 8, 2018, and this, together with Albertsons motion, should have alerted plaintiffs counsel to the need to have plaintiffs own expert inspect and test the floor area “at the earliest possible time.”
The trial court found it “troubling” that Mr. C.s declaration did not indicate that plaintiffs counsel, including Mr. C., had made any attempt to communicate with Albertsons counsel in order to complete plaintiffs site inspection and testing as soon as possible after Albertsons 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.”
Mr. M., who represented plaintiff at the hearing, explained that plaintiffs counsel had “originally noticed” plaintiffs inspection demand “in the summer of 2018.” Then, after plaintiffs counsel received Albertsons objections to the inspection demand, plaintiffs counsels “usual” expert forensic engineer notified plaintiffs counsel that there was a potential conflict of interest that would prevent the engineer from conducting the floor inspection and testing for plaintiff. Thus, plaintiffs counsel began “trying to get another forensic engineer.”
Mr. M. further explained that “sometime while” plaintiffs counsel was trying to get a new expert forensic engineer for plaintiff, plaintiffs counsel received Albertsons motion. At some point thereafter—Mr. M. did not say when—plaintiffs counsel determined that their “usual” expert did not have an actual conflict of interest in working on plaintiffs case. Thereafter, on February 4, 2019, plaintiffs counsel noticed plaintiffs site inspection for March 12, 2019. Albertsons then notified plaintiffs counsel that the subject flooring where plaintiff fell had been removed, but Albertsons would make “pieces of the tile floor” on which plaintiff fell available for plaintiffs experts inspection and testing on March 12, along with other areas of the store which still had the same tile floor.
In response, Albertsons counsel first argued that the trial court should not consider any of the “new information” provided by Mr. M. at the hearing, as none of that information had been timely and properly presented in a declaration. Second, Albertsons counsel argued that Mr. M.s explanation did not answer the courts questions concerning the lack of diligence exercised by plaintiffs counsel in completing the floor inspection and testing. Third, Albertsons counsel noted that plaintiffs counsel had not explained what evidence plaintiff had that would raise a triable issue of material fact on the third ground for Albertsons motion: that Albertsons did not have actual or constructive notice that there was water on the floor at the time plaintiff fell. Plaintiffs pending inspection would not “go to that issue.”
The trial court denied plaintiffs requested continuance. The courts written order denying the continuance states, “The court finds that [p]laintiffs [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 defendants motion. Plaintiffs request to continue is therefore DENIED.”
Regarding the merits of Albertsons unopposed motion, the trial court ruled that the motion had merit because it showed that Albertsons “had neither actual nor constructive notice of the allegedly wet floor that plaintiff slipped on.” The court pointed to Albertsons 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.
C. Plaintiffs New Trial Motion
The trial court entered judgment in favor of Albertsons on April 29, 2019, and Albertsons 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.) Albertsons 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. Plaintiffs 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 Albertsons 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 Albertsons 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 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 courts discretion (Frazee, supra, 95 Cal.App.4th at p. 633, 115 Cal.Rptr.2d 780), and the courts ruling is reviewed for an abuse of discretion. (Chavez v. 24 Hour Fitness USA, Inc. (2015) 238 Cal.App.4th 632, 643, 189 Cal.Rptr.3d 449.) Continuance requests under section 437c, subdivision (h), are to be liberally granted. (Bahl, supra, 89 Cal.App.4th p. 395, 107 Cal.Rptr.2d 270; Dee v. Vintage Petroleum, Inc. (2003) 106 Cal.App.4th 30, 34-35, 129 Cal.Rptr.2d 923.) “[T]he interests at stake are too high to sanction the denial of [such] a continuance [request] without good reason.” (Frazee, at p. 634, 115 Cal.Rptr.2d 780.) These interests include the importance of deciding cases on their merits rather than on procedural deficiencies. (Bahl, at pp. 398-399, 107 Cal.Rptr.2d 270.)
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, 107 Cal.Rptr.2d 270; Johnson v. Alameda County Medical Center (2012) 205 Cal.App.4th 521, 532, 140 Cal.Rptr.3d 281 (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 time is needed to obtain [or discover] these facts.’ ” (Frazee, supra, 95 Cal.App.4th at p. 633, 115 Cal.Rptr.2d 780, quoting Wachs v. Curry (1993) 13 Cal.App.4th 616, 623, 16 Cal.Rptr.2d 496; see Ace American Ins. Co. v. Walker (2004) 121 Cal.App.4th 1017, 1023, 18 Cal.Rptr.3d 1.)
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Plaintiff claims her requested 45-day continuance of the March 6, 2019 hearing was “mandatory” because her counsel, Mr. C.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, 115 Cal.Rptr.2d 780.) Specifically, plaintiff claims that Mr. C.s declaration showed that the continuance was necessary to allow plaintiffs 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 Albertsons motion explaining that the testing showed that the floor was unreasonably slippery when wet with water.
We agree, and the trial court acknowledged, that plaintiffs own expert inspection, testing, and declaration concerning the slipperiness of the floor area was essential to justify plaintiffs opposition to the second ground for Albertsons motion. Albertsons supported the second ground for its motion with the declaration of Albertsons expert, Mr. R., 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. R.s opinion with another experts contrary opinion.
But as the trial court pointed out, Mr. C.s declaration did not explain why plaintiffs expert testing was not completed before plaintiffs opposition to Albertsons motion was due on February 20, 2019. Mr. C.s declaration did not attempt to address why plaintiffs expert inspection, testing, and declaration were not completed before February 20. Nor did Mr. M., who represented plaintiff at the March 6 hearing, explain why it took Messrs. C. and M., and plaintiffs 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 plaintiffs expert inspection, testing, and declaration “at the earliest possible time” after Albertsons 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).
In Bahl, our colleagues in Division Three of this court questioned whether a partys 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 partys continuance request under section 437c, subdivision (h). (Bahl, supra, 89 Cal.App.4th at pp. 397-400, 107 Cal.Rptr.2d 270.) 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, 107 Cal.Rptr.2d 270.) To the Bahl court, the statutes failure to mention a partys diligence in seeking the necessary discovery raised “obvious doubts” about the relevance of a partys “discovery diligence” to the partys 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 courts discretion to deny a continuance is strictly limited.” (89 Cal.App.4th at p. 398, 107 Cal.Rptr.2d 270, 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] plaintiffs due diligence deficit.” (Id. at p. 399, 107 Cal.Rptr.2d 270.) Nor was there any showing of “a special reason to protect the trial date.” (Ibid.)
Ultimately, the Bahl court concluded that, “[e]ven were plaintiffs 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, 107 Cal.Rptr.2d 270.) Thus, the court concluded that the trial court had “exceeded the bounds of its limited discretion” in denying the plaintiffs request to continue the hearing on the summary judgment motion. (Id. at p. 400, 107 Cal.Rptr.2d 270.)
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, 115 Cal.Rptr.2d 780, italics added, citing Bahl, supra, 89 Cal.App.4th at p. 397, 107 Cal.Rptr.2d 270 [“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, 115 Cal.Rptr.2d 780.)
In Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 19 Cal.Rptr.3d 810 (Cooksey), at pages 255 to 257, 19 Cal.Rptr.3d 810, 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, 19 Cal.Rptr.3d 810.) That split of authority continues to this day. (See, e.g., Rodriguez v. Oto (2013) 212 Cal.App.4th 1020, 1038-1039, 151 Cal.Rptr.3d 667 [no abuse of discretion in denying continuance request where party “offered no cogent justification for extreme tardiness” in seeking necessary discovery] and Insalaco v. Hope Lutheran Church of West Contra Costa County (2020) 49 Cal.App.5th 506, 519-520, 262 Cal.Rptr.3d 852 [holding abuse of discretion in denying partys continuance request even though party not diligent in seeking necessary discovery].) The Cooksey court noted that the courts in the First, Second, and Sixth Appellate Districts had upheld denials of continuance requests, at least partly on the ground that the party seeking the continuance had had adequate time to complete the discovery. (Id. at pp. 255-256, 19 Cal.Rptr.3d 810, citing and discussing FSR Brokerage, Inc. v. Superior Court (1995) 35 Cal.App.4th 69, 76, 41 Cal.Rptr.2d 404, Wachs v. Curry (1993) 13 Cal.App.4th 616, 624, 16 Cal.Rptr.2d 496, OLaskey v. Sortino (1990) 224 Cal.App.3d 241, 251, 273 Cal.Rptr. 674, A & B Painting and Drywall, Inc. v. Superior Court (1994) 25 Cal.App.4th 349, 356-357, 30 Cal.Rptr.2d 418, and Desaigoudar v. Meyercord (2003) 108 Cal.App.4th 173, 191, 133 Cal.Rptr.2d 408.)
In contrast, the Cooksey court noted that the court in Bahl had questioned the relevancy of a partys diligence in seeking discovery to the partys request for a continuance under section 437c, subdivision (h), and that the same court in Frazee “suggested in dicta that a partys 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, 19 Cal.Rptr.3d 810, 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, 19 Cal.Rptr.3d 810.)
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 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, 19 Cal.Rptr.3d 810; see Rodriguez v. Oto, supra, 212 Cal.App.4th at pp. 1038-1039, 151 Cal.Rptr.3d 667.)
We agree with the Cooksey courts 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, 19 Cal.Rptr.3d 810.) This showing was not made here. Mr. C. made no attempt to show, in his declaration in support of plaintiffs continuance request, why the inspection and testing of the floor area by plaintiffs expert, and the experts declaration in opposition to Albertsons motion, could not have been completed before plaintiffs opposition to Albertsons motion was due on February 20, 2019. Nor did Mr. C., in his declaration, or Mr. M., at the March 6 hearing, explain why plaintiffs counsel waited until February 4, 2019—around six weeks after Albertsons motion was filed and served on December 18, 2018—to serve plaintiffs inspection demand on Albertsons, which scheduled plaintiffs expert inspection and testing for March 12, 2019, six days after the March 6 hearing on Albertsons motion. For these reasons, the trial court did not abuse its discretion in denying plaintiffs continuance request under section 437c, subdivision (h), based solely on her plaintiffs counsels failure to show diligence in completing the necessary floor inspection and testing. (Cooksey, at p. 257, 19 Cal.Rptr.3d 810.)
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Plaintiff argues that the trial court abused its discretion in denying her requested 45-day continuance because Albertsons 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, 107 Cal.Rptr.2d 270.) 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, 19 Cal.Rptr.3d 810.) 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, 19 Cal.Rptr.3d 810.)
B. Plaintiffs 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.
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 Albertsons 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 Albertsons motion—evidence and argument that she did not proffer in opposition to Albertsons motion.
Regarding the second ground for Albertsons motion, plaintiff adduced evidence that, at the Albertsons store on March 12, 2019, her expert forensic engineer, Mr. B., 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 plaintiffs fall was “excessively slippery to allow for safe ambulation of all store patrons.” Mr. B. 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 Albertsons knew or should have known that water from cut-flower vases could be dripped or spilled onto the floor, the standard of care required Albertsons to install slip resistant flooring in that area. Mr. B. also opined that the standard of care required Albertsons 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.
Additionally, plaintiff adduced evidence and argument to counter the first and third grounds for Albertsons 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 Albertsons 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 Albertsons 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. C., in support of her new trial motion. Mr. C. averred that he reviewed Albertsons motion on December 27, 2018. On December 28, 2018, Mr. C. instructed “the attorney handling this case” to have Wexco International (Wexco), Mr. B.s firm, test the floor area and to serve Albertsons with a 30-day inspection demand so that the testing could be completed “by early February 2019.” Around February 2, 2019, Mr. C. reviewed the file “to ascertain the status of the site inspection” and learned that it had not yet been noticed.
Mr. C. then “inquired with the handling attorney and his legal assistant” and “learned that a potential conflict of interest had existed between Wexco and Albertsons and that Wexco finally confirmed with this firm in late January 2019 that no such conflict of interest actually existed.” This delay prevented plaintiffs counsel from 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 Albertsons 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 Albertsons motion for summary judgment or summary adjudication.
Mr. C. further explained that, on February 22, 2019, he received a letter dated February 20 from Albertsons counsel, confirming that the March 12 date for the site inspection and testing was acceptable. Given this letter, Mr. C. “did not believe that Albertsons would oppose a request to continue” the March 6, 2019 hearing, and he prepared and filed plaintiffs written request for the continuance.
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He was “surprised” that Albertsons “thereafter opposed this continuance” and, “[i]n retrospect,” he should have asked Albertsons 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 plaintiffs inspection and testing of the floor had not been completed sooner. He apologized for the omission but noted that his current declaration explained why plaintiffs inspection and testing was not completed sooner.
Mr. C. appeared for plaintiff at the June 17, 2019 hearing on plaintiffs new trial motion. At the hearing, the court noted that plaintiffs failure to complete the inspection and testing by early February 2019 was based on factors wholly within plaintiffs counsels control, and when the court denied plaintiffs 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. C. argued that the court abused its discretion in denying plaintiffs 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 Albertsons 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. B.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, 107 Cal.Rptr.2d 841, 24 P.3d 493 (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, 80 Cal.Rptr.3d 6.) 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 Albertsons motion for summary judgment or summary adjudication. (See § 657, subds. 1, 7.)
Generally, rulings on new trial motions are reviewed for an abuse of discretion. (Aguilar, supra, 25 Cal.4th at p. 859, 107 Cal.Rptr.2d 841, 24 P.3d 493.) 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 courts determinations in denying the new trial motion. (Id. at pp. 859-860, 107 Cal.Rptr.2d 841, 24 P.3d 493.) Here, the applicable standard of review is the abuse of discretion standard—the same standard that applies to the trial courts underlying decision to deny plaintiffs requested 45-day continuance of the hearing on Albertsons motion. (Frazee, supra, 95 Cal.App.4th at p. 633, 115 Cal.Rptr.2d 780.)
As we have explained, the trial court did not abuse its discretion in denying plaintiffs request to continue the March 6, 2019 hearing on Albertsons motion. In his declaration in support of the continuance request, Mr. C. did not explain why plaintiffs expert inspection and testing of the floor area was not completed in time for plaintiff to file and serve a substantive opposition to Albertsons motion by February 20, 2019—the date the opposition was due. And, at the March 6 hearing, Mr. M. represented that plaintiffs counsel learned that plaintiffs “usual” expert had a potential conflict of interest in conducting the inspection and testing after plaintiffs counsel received defendants objections to plaintiffs original inspection demand, which was served “in the summer of 2018.” The record shows that Albertsons counsel served those objections by mail on August 21, 2018. Mr. M. also indicated that plaintiffs counsel did not determine that their usual expert, Wexco, did not have an actual conflict of interest until after plaintiffs counsel received and reviewed Albertsons motion in December 2018. Thus, even if the trial court could have properly considered Mr. M.s representations at the March 6 hearing, along with Mr. C.s declaration, Mr. M. did not explain why plaintiffs counsel was unable to arrange to have another expert forensic engineer conduct the inspection and testing for plaintiff in time to file and serve plaintiffs opposition to Albertsons motion by its February 20, 2019 due date.
Mr. C.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 Albertsons motion by February 20. Mr. C. only averred that he did not discover that Wexco had a potential conflict of interest until he reviewed plaintiffs file around February 2. At that time, Mr. C. also discovered that Wexco had “finally confirmed” “in late January 2019 that no such conflict of interest actually existed.” But neither Mr. C. nor Mr. M. ever explained why plaintiffs 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 Albertsons motion by February 20. Thus, the trial court did not abuse its discretion in denying plaintiffs new trial motion.
IV. DISPOSITION
The April 29, 2019 judgment in favor of Albertsons on plaintiffs complaint is affirmed. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278.)
FOOTNOTES
1
. Undesignated statutory references are to the Code of Civil Procedure.
2
. Plaintiff was represented by Carpenter, Zuckerman & Rowley in prosecuting her complaint against Albertsons. Attorney Mr. M. represented plaintiff at the March 6, 2019 hearing.
3
. Another court 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, 140 Cal.Rptr.3d 281, italics omitted; accord, 501 East 51st Street, etc. v. Kookmin Best Ins. Co., Ltd. (2020) 47 Cal.App.5th 924, 939, 260 Cal.Rptr.3d 903.) 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, 115 Cal.Rptr.2d 780, but the two are substantially the same.
4
. Plaintiff correctly points out that, when a partys 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 Sheriffs Dept. (2017) 8 Cal.App.5th 759, 765, 214 Cal.Rptr.3d 151.) But here, plaintiff does not claim that she made a sufficient showing of good cause for a continuance under this alternative discretionary standard.
5
. On February 22, 2019, Albertsons counsel served objections to plaintiffs March 12, 2019 inspection demand. Albertsons counsel did not learn that Mr. B. had completed the March 12, 2019 inspection and testing at the Albertsons store until she received plaintiffs new trial motion.
FIELDS, J.
We concur:
MILLER Acting, P.J.
SLOUGH, J.