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February 2016

San Diego Team Affirms Summary Judgment on Appeal

Matthew Kleiner and Jordan Derringer successfully handled the appeal of a judgment obtained in 2015 by Miles Scully and Todd Konold. Judgment was entered after the trial court granted a summary judgment motion in favor of Gordon & Rees LLP's client, Reliance Environmental Consulting (“Reliance”). The case arose out of an alleged conspiracy by the Appellant’s homeowner’s insurer and an independent adjustment company to discriminate against the Appellants based upon national origin. The Appellants contended that Reliance, the environmental consultant, retained by their homeowner's insurer discriminated against them because they were Armenian. The discovery issued by Gordon & Rees narrowed the evidence supporting Appellants’ claim of discrimination to a funny look. In this regard, Appellants primary evidence of discrimination included the fact that Reliance’s owner, Finkelstein, “kind of looked at [Appellant] in a lopsided way.” Gordon & Rees filed a motion for summary judgment on the grounds that Appellants failed to produce any evidence to support the causes of action set forth in the Second Amended Complaint and the evidence actually produced demonstrated that the Appellants could not maintain any cause of action. The trial court granted the motion for summary judgment concluding that Appellants failed to produce any evidence of discrimination and that Appellants’ counsel failed to meet her burden of proof under 437(c) subdivision (h) that she was entitled to a continuance to conduct further discovery.

On appeal, the Appellants argued that the trial court's summary judgment was erroneous and that additional discovery would have revealed the alleged discrimination. In the Respondent's Brief, it was argued that the Appellants were dilatory in their discovery efforts and failed to satisfy the requirements of Code of Civil Procedure section 437c, subdivision (h) relating to continuances. Gordon & Rees argued that Appellants’ counsel did not explain why additional time was needed to obtain facts necessary to oppose Reliance’s motion for summary judgment. Further, Gordon & Rees argued that Appellants did not identify what facts were necessary to oppose the motion for summary judgment.

In affirming the trial court’s ruling on summary judgment, the Court of Appeal agreed that Appellants did not satisfy the requirements of Code of Civil Procedure section 437c, subdivision (h). The Court of Appeal further held that Appellants failed to produce sufficient evidence to maintain any of the causes of action pled in their Second Amended Complaint. With respect to the “lopsided look”, the Court of Appeal held that it was not sufficient to establish a triable issue of fact regarding intentional discrimination.  The Court of Appeal’s opinion can be found here.

Appellants have since petitioned that the California Supreme Court review this matter. However, the California Supreme Court has denied Appellants’ petition for review.

Jordan S. Derringer
Matthew G. Kleiner



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