Filed 4/25/07 Eiseman v. Power Toyota Irvine CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

APPEAL from an order and judgment of the Superior Court of Los Angeles County. Morris B. Jones, Judge. Affirmed in part, reversed in part and remanded with directions.

Law Offices of J. Jeffrey Long and J. Jeffrey Long for Plaintiffs and Appellants.

Law Offices of Kolar & Associates, Inc., Elizabeth L. Kolar and Jeanne L. Tollison for Defendants and Respondents.

_________________________

This case arises out of the identity theft of appellant Robert Eiseman (Eiseman). Approximately one month after Eiseman purchased a car from respondent Power Toyota Irvine (PTI), Armando Corral (Corral) was arrested in Arizona for misrepresenting himself as Eiseman. Believing that PTI was the source of his identity theft, Eiseman and his mother, Anne Eiseman (Anne), initiated this lawsuit against PTI and others,[1]alleging negligence, invasion of privacy, and related causes of action. The trial court granted Toyotas motion for summary judgment, finding no triable issue of fact as to any cause of action. Eiseman and Anne appeal, contending that the trial court erred in (1) failing to rule on their request for a continuance pursuant to Code of Civil Procedure section 437c, subdivision (h);[2]and (2) finding no triable issue of material fact.

We affirm in part, reverse in part and remand the matter with directions. With respect to the Business and Professions Code section 17200, identity theft, conspiracy, negligence, negligent infliction of emotional distress, intentional infliction of emotional distress, and invasion of privacy causes of action, we reverse the trial courts order granting Toyotas motion for summary judgment. In connection with these causes of action, the trial court erred in implicitly denying appellants request for a continuance pursuant to section 437c, subdivision (h). However, the evidence that appellants seek to obtain is irrelevant to Eisemans claim for fraud; thus, a continuance with respect to that cause of action was not required. Because Eiseman failed to establish a triable issue of material fact as to this cause of action, the trial courts order granting summary adjudication of the fraud cause of action is affirmed.[3]

FACTUAL AND PROCEDURAL BACKGROUND

Eiseman purchases a car from Toyota; Eiseman becomes a victim of identity theft

On November 3, 2002, Eiseman purchased a 2003 Toyota Spyder from Toyota. He purchased the vehicle in a transaction known as a sign and drive, meaning that his credit score was sufficiently favorable (795 out of a total 800) such that the transaction was automatically approved. At the time of the purchase, he completed a credit application, which included his name, address, social security number, and date of birth. The sales person presented this information to James Earnest, a Toyota sales manager, who then used this information to secure a consolidated credit report on Eiseman through First American Credco (Credco).

On December 7, 2002, Eiseman refinanced his car through California Credit Union. At that time, he was informed that his credit score had decreased in the past 30 days, from 795 to 756.

The next day, Eiseman was contacted by an investigator from the Sears Fraud Unit in Tucson, Arizona, inquiring whether he was then making a purchase at an Arizona Sears store. When Eiseman advised the investigator that he was not, the Sears Fraud Unit then facilitated the arrest of Corral, a person using Eisemans identity to purchase goods in Arizona. At the time, Corral possessed a California drivers license bearing Eisemans personal information,[4]Eisemans social security number, and documents relating to 15 years of Eisemans credit history.

Prior incidents of identity theft

By the fall of 2002, Toyota knew that it had experienced at least four instances of identity theft related to vehicle purchases.

The complaint

Because he had made no other purchases requiring a credit check between January 4, 2002, and November 3, 2002, Eiseman believed that Toyota was the source of the wrongful disbursement of his credit information. Accordingly, he and Anne initiated this lawsuit against Toyota and Credco on October 29, 2003. Their fourth amended complaint, which is the operative pleading, alleges 10 causes of action: fraudulent business practices (auto agencies), fraudulent business practices (credit agencies), identity theft, fraud, conspiracy, negligence, negligent infliction of emotional distress, intentional infliction of emotional distress, violation of the Consumer Credit Reporting Act, and invasion of privacy.

Toyotas motion for summary judgment

On November 14, 2005, Toyota filed a motion for summary judgment or summary adjudication of issues, arguing that no triable issue of material fact existed as to any cause of action.

Appellants opposition

Appellants filed their opposition on January 17, 2006. In support of their opposition, appellants filed the declaration of Jason Warren (Warren). Warren, a United States secret service agent, attested that he also was the victim of identity theft following his inquiry into the purchase of a vehicle from Toyota in September 2002. In connection with his investigation into identity theft claims at Toyota, he discovered 150 consumers who conducted transactions at Toyota between July 2002 and April 2003 who were the victims of identity theft. According to Warren the only point of commonality of these [150] victims, which includes [Eiseman] and [Warren] is [Toyota].

In addition to challenging Toyotas claim that no triable issue of fact existed, appellants requested a continuance of the motion pursuant to section 437c, subdivision (h). Appellants asserted that additional facts may exist but could not yet be presented because the identities of the 150 victims were inaccessible as a result of a grand jury investigation. In support of this request, appellants submitted the declaration of their attorney, J. Jeffrey Long (Long).

Toyotas reply

Toyota filed its reply brief on January 25, 2006, claiming that appellants had failed to demonstrate a triable issue of material fact. With respect to appellants request for a continuance, Toyota argued that no additional discovery was allowable or possible; the lawsuit had been filed on October 29, 2003, and the case had already been continued for several months at appellants request to allow them to obtain additional evidence, primarily from the grand jury. Because trial was scheduled to commence on March 1, 2006, discovery was required to be completed by January 30, 2006.

Trial court grants Toyotas motion for summary judgment

On March 14, 2006, the trial court issued its order, granting Toyotas motion for summary judgment. It found no triable issue of material fact as to any cause of action. The trial courts order is silent regarding appellants request for a continuance.

Judgment was entered, and this timely appeal followed.

DISCUSSION

I. Section 437c, subdivision (h)

Appellants contend that the trial court erred in failing to rule on their request for a continuance pursuant to section 437, subdivision (h).[5] Although the trial court did not explicitly rule on their request for a continuance, the grant of summary judgment implies a denial. (Frazee v. Seely (2002) 95 Cal.App.4th 627, 634.)

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, 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 party opposing the motion for summary judgment must show (1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain the facts. (Frazee v. Seely, supra, 95 Cal.App.4th at p. 633.) The affiant is not required to show that essential evidence does exist, but only that it may exist. (Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 395.)

If the party makes the requisite showing, then the trial court must deny the motion or continue the hearing, and the failure to do so is reversible error. (Nazar v. Rodeffer (1986) 184 Cal.App.3d 546, 556557.) Only if the requisite showing is lacking will the trial courts ruling on the request for continuance be reviewed for an abuse of discretion. (Scott v. CIBA Vision Corp. (1995) 38 Cal.App.4th 307, 313314, 325326.) Even under these circumstances, the interests at stake are too high to sanction the denial of a continuance without good reason. (Frazee v. Seely, supra, 95 Cal.App.4th at p. 634.)

Necessarily, continuances are to be liberally granted. (Ibid.; see also Bahl v. Bank of America, supra, 89 Cal.App.4th at p. 395.)

II. The trial court erred in denying appellants request for a continuance; however, reversal is not required as to Eisemans fraud cause of action

Based upon the evidence presented below, we conclude that the trial court erred in denying appellants request for a continuance pursuant to section 437c, subdivision (h). Appellants demonstrated that additional facts essential to justify opposition may exist. (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 548.) Specifically, appellants contend that Toyota is the source of Eisemans identity theft. They know of at least one other person, Warren, who also is the victim of identity theft and who also engaged in business at Toyota. Moreover, Warren testified that there are at least 150 persons who transacted business at Toyota and then had their identities compromised. Because a grand jury investigation is ongoing, appellants are unable to access information relating to those victims, including their identities. (Los Angeles Times v. Superior Court (2003) 114 Cal.App.4th 247, 262.) Given the undisputed evidence that the only commonality among these victims of identity theft, at this time, is Toyota, facts relating to those other victims may justify opposition and may support appellants claims against Toyota. Under these circumstances, the trial court should have granted appellants request for a continuance until such time as appellants could access information relating to the 150 victims.

Toyota contends that the trial court properly denied appellants request for a continuance because a significant amount of discovery had already taken place and appellants were well aware of the existence of the grand jury proceedings for months prior to the filing of the motion for summary judgment. This argument is not compelling. While much discovery may have taken place, discovery relating to the other victims of identity theft had not been taken because it could not have been taken. The grand jury investigation precluded appellants from identifying the other identity theft victims and then inquiring about their individual circumstances. And, appellants have no control over the grand jury investigation. Thus, the fact that it may have been pending for months prior to when Toyota filed its motion for summary judgment has no bearing on whether a continuance was appropriate.[6]

Toyota also claims that this information is irrelevant; even if there were 150 individuals who purchased vehicles from Toyota and thereafter had their identities compromised, that does not support appellants claims. We disagree, except as to the fraud cause of action as discussed below. If 150 consumers became the victims of identity theft after they conducted business at Toyota, and the only common thread among those consumers was Toyota, such evidence would tend to suggest that Toyota was the source of the breach. In fact, this inference is bolstered by evidence presented by appellants that Toyota had no written or oral identity theft policy in place either before or after it was apprised of the claims of identity theft. It follows that a triable issue of fact may exist as to eight of the causes of action alleged against Toyota, warranting denial of Toyotas motion for summary judgment.

Accordingly, we must reverse the trial courts order awarding Toyota summary judgment. The proposed evidence may justify opposition to Toyotas motion as to the business practices, identity theft, conspiracy, negligence, negligent and intentional infliction of emotional distress, and invasion of privacy causes of action. Upon remand, the trial court should grant appellants request for a continuance of Toyotas motion to allow them sufficient time to obtain necessary information that has been unavailable as a result of the grand jury investigation. Needless to say, in reversing this matter, we express no opinion as to the merits of these claims.

Although we conclude that the trial court abused its discretion in denying appellants request for a continuance with respect to the aforementioned eight causes of action, we find no error with respect to Eisemans fraud cause of action. Evidence relating to the other 150 possible victims of identity theft has nothing to do with this cause of action. Accordingly, we now consider whether the trial court properly summarily adjudicated the fraud claim against Eiseman.[7] We review this issue de novo. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.)

The elements of a cause of action for fraud are (1) false representation as to a material fact, (2) knowledge of its falsity, (3) intent to defraud, (4) justifiable reliance, and (5) resulting damage. (Wilhelm v. Pray, Price, Williams & Russell (1986) 186 Cal.App.3d 1324, 1331.) Eiseman failed to demonstrate a triable issue of material fact as to these elements. There is no evidence that Toyota made any false representations to Eiseman. While Eiseman attempts to dispute this fact set forth in Toyotas separate statement, simply writing Disputed, without citing to any contrary evidence, is insufficient to create a triable issue of fact. (Cal. Rules of Court, former rule 342(f), now rule 3.1350(f) [An opposing party who contends that a fact is disputed must state . . . the nature of the dispute and describe the evidence that supports the position that the fact is controverted].) Likewise, there is no evidence that Toyota intended to defraud him. Absent disputed evidence as to these elements, the trial court properly granted Toyotas motion for summary adjudication of the fraud cause of action. ( 437c, subd. (p)(2) [A defendant . . . has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action . . . cannot be established].)

DISPOSITION

The order and judgment of the trial court are reversed. We deem the trial court to have granted summary adjudication of the fourth (fraud) cause of action, and affirm the ruling in that respect. In all other respects, the matter is remanded with directions to grant appellants request for a continuance. The parties to bear their own costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________, J.

ASHMANN-GERST

We concur:

_____________________, Acting P. J.

DOI TODD

_____________________, J.

CHAVEZ

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[1] Eiseman also named Lew Webb Toyota of Irvine, AutoNation, Inc., and Toyota Financial Service as defendants. For the ease of the reader, all of these entities are collectively referred to as Toyota.

[2] All further statutory references are to the Code of Civil Procedure unless otherwise indicated.

[3] As set forth in their opening brief, appellants waive any challenge to the trial courts summary adjudication of their claim for violation of the Consumer Credit Reporting Act. Thus, we do not address the merits of this cause of action.

[4] The address on the forged drivers license was that of Anne. Eiseman had been living with his mother at that address only since August 2002.

[5] Toyota asserts that appellants never actually requested a continuance. We disagree. In their opposition to Toyotas motion for summary judgment, appellants referenced section 437c, subdivision (h) and indicated that additional facts may exist. In support of their opposition, appellants filed Longs declaration, in which he asserted that additional facts may exist but cannot be obtained because of the grand jury proceedings. And, Toyota even responded to appellants request for a continuance in their reply brief, arguing that no additional discovery was allowable or possible.

[6] Notably, the trial court had apparently already continued the case to allow appellants to obtain additional evidence, primarily from the grand jury. The summary judgment motion, however, apparently never was continued. It was heard on its originally scheduled hearing date.

[7] Anne was not named as a plaintiff in the fraud cause of action.