Dharmakirthi v. Coldwell Banker Real Estate CA2/1

Filed 11/3/26 Dharmakirthi v. Coldwell Banker Real Estate CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE ANULA MALLIKA B354355 DHARMAKIRTHI, et al., (Los Angeles County Plaintiffs and Appellants, Super. Ct. No. 25VECV01830) v. COLDWELL BANKER REAL ESTATE, LLC, et al., Defendants and Respondents. APPEAL from a judgment of the Superior Court of Los Angeles County, Karen Moskowitz, Judge. Reversed and remanded with directions. Haight Brown & Bonesteel, Yury A. Kolesnikov, Krsto Mijanovic, and Sheila M. Templeton for Plaintiffs and Appellants. Lagasse Branch Bell + Kinkead, Thomas P. Gmelich, Dean A. Reeves, and Mark I. Melo for Defendants and Respondents.  Brian A. Manson, Neil Kalin, and Seraphine Ah Sam for California Association of Realtors as Amicus Curiae on behalf of Defendants and Respondents. _______________________________ While attending an open house at a residential property for sale, plaintiff Anula Mallika Dharmakirthi fell on a set of three stairs leading from the entryway of the house down to a sunken living room. Together with three family members who witnessed the fall, Dharmakirthi filed this action for negligence and premises liability against the homeowner and several Coldwell Banker entities, including the one that conducted the open house. Plaintiffs alleged that the stairs, as designed, constituted a dangerous condition, and the homeowner and the Coldwell Banker defendants had actual or constructive notice of the dangerous condition. Plaintiffs appeal from a judgment entered after the trial court granted the Coldwell Banker defendants’ motion for summary judgment on the ground that they lacked actual or constructive notice of the alleged dangerous condition of the stairs as a matter of law. We reverse the judgment, concluding the trial court erred when it denied plaintiffs’ request for a continuance of the summary judgment proceedings to allow their expert to inspect the property. BACKGROUND A. The Complaint The four plaintiffs in this action are Dharmakirthi, who was 88 years old when she fell at the open house on or about July 2 21, 2024;1 Dharmakirthi’s daughter, Anjalie Chitrangi Dunuwillie; Dharmakirthi’s adult granddaughter, Ashley Devaki Johnston; and Dunuwillie’s partner Marian Jayasath Sebastian Waas (collectively, plaintiffs). On April 1, 2025, plaintiffs filed this action for negligence and premises liability against Coldwell Banker Real Estate LLC and Coldwell Banker Residential Real Estate LLC (collectively, Coldwell Banker) and Aysegul Goren, the owner of the residential property where Dharmakirthi fell, located at 6 Colt Lane, in Bell Canyon (the property). Plaintiffs alleged that after they arrived at the open house and “Dharmakirthi entered the interior entryway of the home, she took a natural step forward. Due to an unmarked, abrupt, and unnoticeable drop-off at the leading edge of the steps, she unexpectedly lost her balance, fell, and violently rolled down the steps,” sustaining “traumatic injuries to her head, shoulder, and hip.” The other three plaintiffs witnessed the fall and alleged that it “caused each of them severe psychological stress.” Plaintiffs maintained in their complaint that, “At the time of the incident, the interior entryway stairs were concealed and unmarked, lacking any visual indicators, warnings, railings, or safety features to alert entrants of the abrupt elevation change. The hazardous drop-off posed an unreasonable risk of harm to foreseeable visitors, including [p]laintiffs. No warnings were 1 According to plaintiffs’ complaint and evidence they submitted in opposition to the subject summary judgment motion, the date of Dharmakirthi’s fall was July 21, 2024. Coldwell Banker’s evidence in support of the summary judgment motion lists the date of this incident as July 24, 2024. The exact date is immaterial to our analysis of the issues on appeal. 3 posted or given.” Plaintiffs asserted that Goren and Coldwell Banker had actual or constructive notice of the dangerous condition, and “failed to repair, mitigate, or warn of the hazard, thereby breaching their duty of care under California law.” On August 15, 2025, four and a half months after plaintiffs filed this action, they filed a motion for preferential trial setting under Code of Civil Procedure section 36.2 Coldwell Banker opposed the motion. On October 15, 2025, the court granted the motion, finding trial preference to be mandatory due to Dharmakirthi’s age and health (“multiple injuries making her medically fragile”). The court set the trial for March 16, 2026. B. Coldwell Banker’s Motion for Summary Judgment On November 25, 2025, Coldwell Banker filed a motion for summary judgment.3 Coldwell Banker did not dispute that a listing agent showing property at an open house owes attendees a duty of ordinary care. (See, e.g. Hall v. Rockcliff Realtors (2013) 215 Cal.App.4th 1134, 1140.) 1. Evidence submitted with the motion As set forth in Goren’s declaration accompanying Coldwell Banker’s summary judgment motion, she purchased the property in 2020 and did not remodel any part of it. Prior to the July 2024 incident in this case, she was unaware of anyone tripping or falling on the stairs at issue. 2 Undesignated statutory references are to the Code of Civil Procedure. 3 On December 16, 2025, homeowner Goren filed a joinder to Coldwell Banker’s summary judgment motion, which the court denied as untimely under section 437c, subdivision (a)(2). 4  Coldwell Banker’s agent, Katherine Stark, also submitted a declaration in support of the summary judgment motion. As stated therein, she had been a licensed realtor for nearly 40 years and had been affiliated with Coldwell Banker for more than 25 years. She was the original listing agent for the property, which consisted of a 1.47-acre lot and a 5,100-square-foot single-family house. In the front entryway of the house was “a ‘landing’ extending from the front doors toward a set of three (3) steps or stairs leading to a sunken living room area on the first floor of the residence.” In the four months before Dharmakirthi’s fall, approximately 60 prospective buyers and agents visited the property during open houses and individual appointments. Stark “received no reports at any time of any other trip-and-falls or similar incidents involving the stairs at the front entryway during any of the showings of the [p]roperty prior to” the July 2024 incident with Dharmakirthi. Nor did Goren or anyone else advise Stark “that there had ever been any other instances of persons tripping and falling at the subject stairs prior to” the July 2024 incident. On the date plaintiffs visited the property in July 2024, Stark and another agent affiliated with Coldwell Banker showed the property at an open house scheduled from 2:00 to 5:00 p.m. Stark arrived at the property approximately 20 minutes before the open house began. She “visually inspected the [p]roperty, including the stairs at the front entryway for any conditions that might potentially cause a person to fall. [She] found no such conditions at the subject stairs, or anywhere else inside the [p]roperty.” She “was standing inside the [p]roperty near the front entry” when plaintiffs arrived for the open house, and she greeted them as they entered the property. “There was no water, 5 liquid, or other items on the stairs at the time of [Dharmakirthi]’s fall.” According to Stark, after the fall, Dharmakirthi’s family continued to view the property for approximately 20 minutes, while Dharmakirthi “sat in a chair near the front entryway.” Coldwell Banker also provided a declaration from John Brault, “a biomechanics consultant with a specialization in walkway safety.” On November 19, 2025, he “inspected, measured, and photographed the area of the [July 2024] incident inside the front entrance” of the property. According to his measurement, the “distance from the front door to the edge of the interior landing where [Dharmakirthi]’s fall allegedly occurred” was six feet, and the “stairway leading to the sunken living room was composed of three risers with a total elevation change of 21 ¼ inches.” Brault determined that neither the 1988 Uniform Building Code applicable to the property (which was built in 1991) nor the 2019 California Building Code (in effect when Goren purchased the property) required handrails or stairway markings for the stairs at issue. Attached to Brault’s declaration are two photographs of the stairs that he took during his inspection of the property. Both photos show a vantage point from the bottom of the stairs looking toward the entryway landing. The landing and the stairs are both made from the same dark-colored wood. 2. Coldwell Banker’s arguments in support of summary judgment In the motion, Coldwell Banker argued plaintiffs could not prevail on a cause of action for negligence or premises liability because plaintiffs could not produce any admissible evidence showing that Coldwell Banker had actual or constructive notice of the alleged dangerous condition of the stairs. In support of this 6 argument, Coldwell Banker cited Goren’s and Stark’s statements in their declarations that they were unaware of any prior trip- and-fall incidents on the stairs, and Stark’s statements regarding her inspection of the stairs and her finding that there were no conditions that might cause a person to fall on the stairs. Coldwell Banker further argued plaintiffs could not produce any admissible evidence to establish the existence of a dangerous condition. Here, in addition to referencing the absence of prior trip-and-fall incidents on the stairs, Coldwell Banker cited Brault’s statements that the applicable building code did not require handrails or stairway markings for the stairs at issue. After Coldwell Banker filed the summary judgment motion, plaintiffs amended their complaint to add Coldwell Banker Residential Brokerage Company dba Coldwell Banker Realty as a defendant, and the court granted the new defendant’s ex parte application to be added to the existing summary judgment motion. Hereinafter, our use of the defined term “Coldwell Banker,” includes this additional defendant. C. Plaintiffs’ Opposition to the Summary Judgment Motion 1. Denial of plaintiffs’ ex parte request for a continuance On January 19, 2026, a few days before their opposition to the motion for summary judgment was due, plaintiffs filed an ex parte application seeking a continuance of three months for both the hearing on the summary judgment motion and the trial. Plaintiffs stated that Goren had not timely responded to various discovery requests or answered all relevant questions at her deposition, and motions to compel responses were set for hearing 7 at the end of February 2026. Plaintiffs also attached a declaration from their counsel and exhibits, indicating that on January 7, 2026, counsel for plaintiffs and Goren discussed setting a date for plaintiffs to inspect the property, and on January 15, 2026, counsel for Goren informed counsel for plaintiffs that Goren would be unavailable for an inspection until after February 7, 2026, because she was out of the country. Coldwell Banker filed an opposition to the ex parte application, arguing that although “it was [p]laintiffs who moved to have the trial preferentially set, [p]laintiffs ha[d] not been diligent in completing discovery.” Among other things, Coldwell Banker noted that plaintiffs “never served a formal demand for a site inspection of the subject property.” Coldwell Banker also stated that “the requested 90-day continuance is completely unfeasible given the existing trial calendar and personal commitments of [Coldwell Banker]’s lead trial counsel.” On January 20, 2026, the court issued a minute order denying the ex parte application and stating: “There is no affirmative factual showing of diligence, irreparable harm or other statutory bases necessitating the requested [ex parte] relief. Plaintiffs were granted trial preference pursuant to [section 36, subdivision (f)] and continuing trial and related dates would result in prejudice to Defendants as well as greatly impact this [c]ourt’s congested trial calendar.” On January 22, 2026, plaintiffs filed their opposition to Coldwell Banker’s motion for summary judgment. 8  2. Evidence plaintiffs submitted with their opposition a. Deposition testimony In support of their opposition to the summary judgment motion, plaintiffs submitted transcripts from the depositions of Dharmakirthi and the other three plaintiffs. Dharmakirthi testified, in pertinent part, that when she and her three family members arrived at the property for the open house and walked inside the home, Stark greeted them, and they all turned to the right to face Stark. While Dharmakirthi was standing there on the landing in the entryway of the home, she looked down and noticed that the floor appeared to be “jet black” in color. Her granddaughter introduced the family members to Stark. Then, Stark said, “ ‘Let’s take a look,’ ” and “motioned towards the living area” of the home. Dharmakirthi turned to her left, looked “straight” ahead, took a step forward toward the living room, and fell down the stairs. She testified that she did not see the stairs before she fell. She only saw “the flat area” (the landing). The other three plaintiffs were still on the landing when Dharmakirthi fell. They all testified they did not notice the stairs prior to her fall; they observed only black, flat flooring. Plaintiff Waas and the other realtor helped Dharmakirthi into a chair in the living room. Plaintiffs Dunuwillie and Johnston walked around and viewed the property while Dharmakirthi sat in the chair. Around 10 minutes after the fall, Waas and the other realtor helped Dharmakirthi from the house to the car, and her family members took her straight to the hospital. b. Declaration from plaintiffs’ expert Plaintiffs provided a declaration from Michael J. Kuzel, who described himself as a “registered professional mechanical 9 engineer” and “human factors expert with specialized training and experience in analyzing human interactions with their physical environments.” Kuzel did not inspect the property. In forming his opinions, he relied upon, among other documentary evidence, three photographs of the entryway and the stairs that he represented were “taken from the property’s real estate listing” and “demonstrate the condition that existed at the time of Ms. Dharmakirthi’s fall”; the transcripts from plaintiffs’ depositions; and an uncertified rough draft of the transcript from Goren’s deposition taken on January 15, 2026, one week before plaintiffs filed their opposition to the summary judgment motion.4 After citing California Building Code provisions regarding “visual contrast on stair tread edges” that he acknowledged “do not apply to single-family residences” like the property here, Kuzel asserted: “In summary, a best practice to reduce the risk of a person falling on a three-riser transition is to apply features that make the condition reasonably conspicuous, such as contrasting materials, colored edge strips, accent lighting, and handrails. While a monochromatic color scheme may provide a cohesive visual form that is uninterrupted by distracting elements, such as a contrasting nosing, this priority for aesthetics comes at the expense of safety.” He opined, among other things, (1) “Steps that lack features to create conspicuity, such as a contrasting nosing, directed illumination to create shadows, or 4 Plaintiffs submitted the rough draft transcript with their opposition to the summary judgment motion. Goren testified consistently with her prior declaration in stating that she was unaware of any trips or falls on the stairs before the July 2024 incident with Dharmakirthi. 10 handrails, result in increased risk of not being detected by persons who are unfamiliar with the conditions,” and (2) “Three riser steps associated with the change in level created a dangerous condition for Ms. Dharmakirthi and other visitors.” Plaintiffs also submitted with their opposition a document described in their counsel’s declaration as a “copy of the real estate listing for 6 Colt Lane, including the listing description and marketing materials describing the property produced by” Coldwell Banker. The listing includes photographs of the property, including one that appears to be identical to a photograph identified in Kuzel’s declaration as exhibit B-1. 3. Plaintiffs’ arguments in opposition to the summary judgment motion Plaintiffs argued in their opposition that there was a triable issue of material fact as to whether the design of the stairs constituted a dangerous condition in “that the uniform dark flooring” eliminated “the visual cues necessary to perceive the level change.” Plaintiffs further asserted, among other things, that the photographs attached to Kuzel’s declaration demonstrated that Coldwell Banker had constructive notice of “the concealed hazard” of the stairs, arguing that the “three-step transition to the sunken living room is virtually invisible” in the photographs. In the opposition, plaintiffs argued that good cause existed for a “short continuance” of the summary judgment motion based on Goren’s outstanding discovery responses and the fact plaintiffs had not yet conducted an inspection of the property and Goren would not be available for such an inspection until after February 7, 2026. The request was supported by a declaration from counsel. 11 D. The Ruling and Judgment On February 10, 2026, the day before the hearing on the summary judgment motion, the court issued a tentative ruling granting the motion. As pertinent to this appeal, the tentative ruling sustained numerous objections Coldwell Banker made to plaintiffs’ expert’s declaration because “Kuzel did not take or properly authenticate the photographs upon which he relies.” The same day, plaintiffs filed a notice of errata and a supplemental declaration from plaintiffs’ counsel in an effort to authenticate the photographs Kuzel relied on through deposition testimony from other witnesses. At the hearing on the summary judgment motion the following day, after hearing oral argument from the parties, the court declined to consider plaintiffs’ notice of errata, explaining: “Just from this argument, it is very clear that it would make an inadequate record and be very prejudicial to the moving parties.” The court adopted its tentative ruling as the final ruling granting Coldwell Banker’s motion for summary judgment. As set forth therein, the court concluded Coldwell Banker met its burden on summary judgment by showing that plaintiffs could not establish Coldwell Banker had actual or constructive notice of the alleged dangerous condition. The court stated: “[H]ere, the stairs at issue have no discernible feature which would pose an unreasonable risk of injury, and Coldwell [Banker] had no notice of prior incidents involving a dangerous condition despite over 60 visitors traversing the same steps.” The court further concluded that plaintiffs did not meet their burden to show a triable issue of material fact because, among other things, they relied on speculation and Kuzel’s “review of unauthenticated photos of the [p]roperty.” The court denied plaintiffs’ request for a 12 continuance, finding plaintiffs did not show what additional discovery “would reveal” or that there was outstanding discovery. On March 10, 2026, the court entered judgment in favor of Coldwell Banker. Plaintiffs filed a timely notice of appeal. After the parties filed their appellate briefing, we granted an application by the California Association of Realtors to file an amicus curiae brief. Plaintiffs filed a response to the amicus curiae brief. DISCUSSION Plaintiffs contend Coldwell Banker failed to satisfy its burden on summary judgment, but even if the burden shifted to them, they showed triable issues of material fact precluding summary judgment. Plaintiffs also contend the trial court erred in denying their request to continue the summary judgment proceedings so their expert could inspect the property. Because we agree with the latter contention and reverse the judgment on this basis, we do not reach the merits of the summary judgment. A. Applicable Law Regarding Plaintiffs’ Continuance Request and Standard of Review “To mitigate summary judgment’s harshness, [section 437c]’s drafters included a provision making continuances— which are normally a matter within the broad discretion of trial courts—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 v. Bank of America (2001) 89 Cal.App.4th 389, 395; Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 253-254 (Cooksey) [section 437c, subdivision (h), “mandates a continuance of a summary judgment hearing upon a 13 good faith showing by affidavit that additional time is needed to obtain facts essential to justify opposition to the motion”].) The provision states: “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.” (§ 437c, subd. (h).) In other words, the affidavit supporting a continuance request “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.” ’ ” (Braganza v. Albertson’s LLC (2021) 67 Cal.App.5th 144, 152; Cooksey, supra, 123 Cal.App.4th at p. 254.) “Continuance of a summary judgment hearing is not mandatory, however, when no affidavit is submitted or when the submitted affidavit fails to make the necessary showing under section 437c, subdivision (h). [Citations.] Thus, in the absence of an affidavit that requires a continuance under section 437c, subdivision (h), we review the trial court’s denial of appellant’s request for a continuance for abuse of discretion.” (Cooksey, supra, 123 Cal.App.4th at p. 254.) 14 B. Analysis Plaintiffs made the requisite showing under section 437c, subdivision (h). Thus, we conclude the trial court erred in denying relief. In declarations submitted with (1) plaintiffs’ ex parte application to continue the summary judgment proceedings and the trial date and (2) plaintiffs’ subsequently filed opposition to the summary judgment motion, plaintiffs’ counsel explained that plaintiffs (i.e., their expert) needed to inspect the property to compare the in-person view of the stairs to the view depicted in Coldwell Banker’s listing photographs to establish the (alleged) dangerous condition.5 Plaintiffs’ counsel also explained in the declarations that the inspection could not occur until approximately two weeks after plaintiffs’ opposition to the summary judgment motion was due. Goren was abroad and would not consent to the inspection until after she returned home from her travels. Coldwell Banker filed the summary judgment motion on November 24, 2025, and plaintiffs’ opposition was due on January 22, 2026. As reflected in the transcript from Goren’s deposition, submitted with plaintiffs’ opposition to the summary judgment motion, Goren was out of the country for all of December 2025 and January 2026, with a return date of February 6 or 7, 2026. The discovery cutoff date was February 16, 2026. The trial court stated in its ruling granting the summary judgment motion that “good cause does not exist for continuing 5 Plaintiffs’ counsel also represented that there was outstanding discovery due from Goren that warranted a continuance. Because this discovery is not material to our analysis, we do not address it further. 15 the opposition for additional discovery.” Where, as here, however, an affidavit (or declaration) shows “that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall” grant relief, in this case a continuance of the summary judgment proceedings to allow plaintiffs’ expert to inspect the property. (See § 437c, subd. (h), italics added.) For its part, Coldwell Banker does not dispute that an in- person inspection of the property by plaintiffs’ expert was “essential to justify opposition” to the summary judgment motion. (See § 437c, subd. (h).) Indeed, Coldwell Banker challenged Kuzel’s expert opinions based on “lack of personal knowledge and perception of the [p]roperty itself.” In the reply brief in support of the summary judgment motion, Coldwell Banker asserted, in pertinent part: “Here, Kuzel never declares that he inspected or even visited the Incident location at any time. [Citation to declaration.] In fact, Kuzel did not inspect the property yet he inexplicably relies on ‘professional listing photographs’ [citation to declaration], which he did not take, and presumes that ‘the photographs demonstrate the condition that existed at the time of Ms. Dharmakirthi’s fall.’ ” In short, Coldwell Banker urged the trial court to deny the summary judgment motion and reject Kuzel’s opinions because he did not inspect the property, while simultaneously urging the court to deny a continuance of the summary judgment proceedings to allow Kuzel to inspect the property. In granting summary judgment, the court found, “Kuzel relies entirely on his review of unauthenticated photos of the [p]roperty.” Suffice it to say that the essentiality of an inspection to plaintiffs’ opposition to the summary judgment motion cannot be overstated. 16  Both below and in this appeal, Coldwell Banker argued plaintiffs were not entitled to a continuance of the summary judgment proceedings based on their lack of diligence in conducting discovery. (See Cooksey, supra, 123 Cal.App.4th at p. 257 [to prevail on a continuance request under section 437c, subdivision (h), “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 trial court did not reference diligence in its denial of the continuance request plaintiffs made at the time they filed their opposition to the summary judgment motion. Earlier, however, when plaintiffs moved ex parte to continue the summary judgment proceedings and the trial date by three months, the court stated in its denial: “There is no affirmative factual showing of diligence, irreparable harm or other statutory bases necessitating the requested [ex parte] relief. Plaintiffs were granted trial preference pursuant to [section 36, subdivision (f)] and continuing trial and related dates would result in prejudice to Defendants as well as greatly impact this [c]ourt’s congested trial calendar.” The cases Coldwell Banker cites in which appellate courts concluded relief under section 437c, subdivision (h), was unwarranted, based, in part, on lack of diligence, are distinguishable. In Cooksey, the declarations of appellant’s counsel and appellant’s expert “failed to state what facts appellant hoped to obtain through further discovery and how such facts were necessary to oppose respondent’s motion [for summary judgment],” and “appellant’s counsel acknowledged that he intentionally delayed discovery for tactical reasons.” (Cooksey, supra, 123 Cal.App.4th at pp. 258, 257.) In FSR 17 Brokerage, Inc. v. Superior Court (1995) 35 Cal.App.4th 69, 76, while the Court of Appeal concluded “there was no justification for the failure to have commenced the use of appropriate discovery tools at an earlier date,” the court first emphasized that “none of the facts which plaintiffs’ counsel stated in his declaration could be the subject of future utilization of discovery tools related to the duty issue” on which the summary judgment motion turned. Finally, in Rodriguez v. Oto (2013) 212 Cal.App.4th 1020, 1038-1039, plaintiff sought a continuance of summary judgment proceedings to locate a witness, but he did not explain what he expected the witness’s testimony to be or why he waited so long to look for the witness. In these cases, denial of section 437c, subdivision (h) relief was not based on lack of diligence alone. Here, plaintiffs sought a continuance to conduct an inspection that was essential to their opposition to the summary judgment motion, and plaintiffs’ counsel explained why the inspection could not take place in the weeks leading up to the deadline to file the opposition. Even if plaintiffs could have conducted the inspection earlier in the litigation, to the extent the trial court relied on this alone in denying the continuance, we conclude the court abused its discretion. (See Insalaco v. Hope Lutheran Church of West Contra Costa County (2020) 49 Cal.App.5th 506, 520 [“Thus, even if the [plaintiffs] should have sought to arrange for a site inspection at an earlier point in this litigation, where, as here, counsel states with particularity the necessary discovery, ‘the policy favoring disposition on the merits outweighs the competing policy favoring judicial efficiency’ ”].) We are mindful that plaintiffs successfully moved for trial preference under section 36 based on Dharmakirthi’s age and 18 health. This does not mean, however, that they are barred from relief under section 437c, subdivision (h), where they have satisfied the statute’s requirements. We reverse the summary judgment and the denial of plaintiffs’ request for a continuance, and remand the matter to allow plaintiffs an opportunity to request an inspection of the property. In light of this disposition, we do not reach plaintiffs’ challenge to the merits of the summary judgment, and we express no opinion thereon. DISPOSITION The judgment is reversed, and the matter is remanded. The trial court is directed to vacate its order granting summary judgment and denying the request for a continuance, and to conduct further proceedings consistent with this opinion. Appellants are entitled to recover costs on appeal. NOT TO BE PUBLISHED M. KIM, J. We concur: BENDIX, Acting P. J. WEINGART, J. 19