Salazar v. Wood Smith Henning & Berman CA2/4

Filed 10/27/26 Salazar v. Wood Smith Henning & Berman CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR ROBERT “BOBBY” SALAZAR, B341438 Plaintiff and Appellant, (Los Angeles County Super. Ct. No. 23STCV10267) v. WOOD SMITH HENNING & BERMAN LLP et al., Defendants and Respondents. APPEAL from a judgment of the Superior Court of Los Angeles County, Steve Cochran, Judge. Affirmed. Joanna Ardalan for Plaintiff and Appellant. Wood Smith Henning & Berman, Frances M. O’Meara and Stephen M. Caine for Defendants and Respondents.  Robert Salazar brings this legal malpractice action against his former attorneys at Wood Smith Henning & Berman, LLP (WSHB). Salazar was a defendant in an employment case. WSHB represented him. According to Salazar, WSHB improperly drafted the settlement agreement resolving that case because the agreement released the plaintiff’s counsel, attorney Brian Whelan, from a further lawsuit by Salazar when it was not supposed to do so. Salazar had sued Whelan in a separate action for defamation. WSHB moved for summary judgment on Salazar’s malpractice claims. The trial court granted the motion. It found that Salazar had not raised a triable issue of fact as to whether Whelan was an intended beneficiary of the release WSHB drafted, even assuming WSHB negligently drafted it. We agree and affirm. As we explain below, Whelan, a non-party to the settlement, could only have been subject to the release as a third-party beneficiary. On the facts here, Salazar could not rely on the language of the release alone to establish that Whelan was a third-party beneficiary. Instead, to meet his summary judgment burden, Salazar needed to point to at least some extrinsic evidence indicating that the parties intended to release Whelan. Salazar introduced no such evidence. Notably, Whelan never raised the release as a defense in the defamation action and the defamation action was resolved via Salazar’s voluntary dismissal. The trial court did not err in granting summary judgment. FACTUAL AND PROCEDURAL HISTORY I. Prior Litigation A. Tovar Action Salazar owns and operates restaurants in Fresno, California. In 2020, a former employee, Rodrigo Tovar, filed an action against Salazar and one of 2 his companies, Olive/Broadway Enterprises, Inc. (the Tovar action). Tovar alleged claims related to employment discrimination and wage and hour violations. In that case, Tovar was represented by attorney Whelan. Salazar and his company1 were represented by respondent attorneys Alicia Kennon and Kristin Smith, through WSHB. B. Defamation Action While the Tovar action was pending, Whelan, Tovar’s attorney, made public statements about Salazar. Another plaintiff, Hilda Lopez, had filed a separate employment lawsuit against Salazar. Lopez, like Tovar, was represented by Whelan. Whelan established a “GoFundMe” website to raise funds for Lopez. On that site, Whelan stated the following. “On June 17, 2021, Hilda Lopez filed a lawsuit for wrongful termination and pregnancy discrimination against Bobby Salazar, owner of the restaurant Bobby Salazar’s in Fresno’s Tower District. On Tuesday June 22, 2021, Mr. Salazar was personally served with the lawsuit. Less than nine hours later, while parked in front of their house, the three cars owned by Ms. Lopez and her family were blown up by fire bombs.” On the GoFundMe website, Whelan also noted two prior “fire-related crimes tied to legal actions against” Salazar. He claimed that “On May 20, 2020, assailants firebombed the car of another Bobby Salazar’s employee who exposed a pay-for-testimony scheme organized by Mr. Salazar in an attempt to tamper with witnesses in a separate wrongful termination lawsuit” and that “[t]wo months later, on Aug. 17, 1 Salazar also owned and operated other entities that were not named as defendants in the Tovar action, Bobby Salazar’s Mexican Food Products, Inc., and Bobby Salazar’s Express, Inc. All of Salazar’s companies are named as appellants in this appeal. Because there is no meaningful distinction between Salazar and his various entities for the purposes of this appeal, for ease of reference only we refer to them collectively as Salazar. 3 2020, assailants attempted to fire-bomb the offices of the attorney (involved in both the Lopez lawsuit and the other wrongful termination lawsuit) with incendiary devices akin to a Molotov cocktail.” Whelan made similar statements about the incidents in several news articles. In September 2021, Salazar sued Whelan and his law firm for defamation and related claims. Whelan filed a special motion to strike under the anti-SLAPP statute, Code of Civil Procedure section 425.16.2 He asserted that the defamation claim was based upon protected speech (prong one of an anti-SLAPP analysis) and that Salazar could not demonstrate a probability of prevailing on his defamation claim (prong two). In January 2022, the trial court in the defamation action denied the motion. It found that Whelan’s statements were not protected under prong one. Whelan appealed and the Court of Appeal reversed. (Salazar v. Whelan (May 15, 2023, F083825) [nonpub. opn.].) The appellate court held that Whelan’s statements were protected activity and remanded for the trial court to consider the second prong. (Ibid.) Before the trial court could reconsider the issue, Salazar voluntarily dismissed the defamation action with prejudice on January 11, 2024. Because Salazar voluntarily dismissed the defamation action, no court resolved the issue of whether Whelan was entitled to attorney fees and costs as a prevailing defendant on an anti-SLAPP motion. (§ 425.16, subd. (c)(1).) C. Settlement of the Tovar Action While the anti-SLAPP appeal in the defamation case was pending, the Tovar employment action in which WSHB represented Salazar was proceeding. By early May 2022, the parties had negotiated a settlement in principle. WSHB agreed in emails with Salazar’s defamation counsel to 2 Undesignated statutory references are to the Code of Civil Procedure. 4 expressly carve the defamation claim out of any settlement release in the Tovar action. At a pretrial hearing on May 4, 2022, the court announced that the parties had reached a settlement and wanted to “put on the record just generally the provisions.” Whelan, Tovar’s counsel, identified some of the settlement terms, including that the parties “agree to release mutually one another from any and all claims known and unknown.” Whelan also stated that the parties intended to “come together to formalize the terms of this agreement in a writing,” but if “they cannot, this [oral agreement] would be enforceable.” WSHB, as Salazar’s counsel, noted that the parties were continuing to go “back and forth” about some details. WSHB then recited the “basic terms” regarding payment and other details. WSHB also confirmed that the parties would “formalize the terms of the agreement in a written settlement.” Whelan again stated that “the parties agree to mutually release one another from claims known and unknown.” WSHB added, “[a]rising from the employment relationship, yes.” WSHB continued, “[t]hat’s what this case is about, the employment relationship, employment dispute. We’re releasing all claims that are related to this lawsuit.” Both Salazar and Tovar stated on the record that they agreed to the terms as recited. Salazar and Tovar executed a written settlement agreement on June 3, 2022. The agreement provided that the parties—Salazar and Tovar—“desire to compromise, settle and release all claims arising out of and related to [Tovar’s] employment with [Salazar], and any and all other claims, whether known or unknown, arising out of or based on any fact, matter or event which occurred prior to the date of this Agreement.” 5  The agreement also contained a paragraph titled “Release of All Claims.” The release stated, “the Parties, including, but not limited to, their assigns, agents, independent contractors, attorneys …, do hereby fully, finally and forever covenant not to sue and release, quit claim and discharge each other, and each of their past and present officers, directors, shareholders, owners, parents, subsidiaries, predecessors, successors, assigns, agents, independent contractors, employees, attorneys, affiliates and those acting in concert with them … (hereinafter referred to as the ‘Released Parties’…), from any and all present disputes, claims, liabilities, demands, debts, accounts, obligations, actions, judgments, causes of action,… and expenses of any kind or nature whatsoever, known or unknown, foreseen or unforeseen, patent or latent, at law or in equity through the date of execution of this Agreement, including, but not limited to the following: arising from this lawsuit and the parties [sic] employment relationships, and including but not limited to any alleged violation of” a list of numerous statutes, as well as “[a]ny public policy, contract, tort or common law.” The provision further provided, “This waiver and release applies to any and all claims the Parties may have or claims [sic] to have had up through the Effective Date of this Agreement.” The only explicit reference to the defamation action was contained in the agreement’s confidentiality provision. As relevant here, that provision stated that nothing in the agreement “shall in any way be read to limit [Whelan] and his firm’s ability to defend themselves against Salazar’s lawsuit nor shall it adversely impact, in any way, [Whelan]’s rights and remedies in the Salazar v. Whelan lawsuit.” 6  Tovar and Salazar signed the agreement as the parties. WSHB and Whelan were not signatories to the agreement, but the attorneys signed a signature block stating “approved as to form.” II. The Malpractice Action A. Complaint Salazar filed this action against WSHB in May 2023. He alleged claims for legal malpractice, breach of fiduciary duty, and breach of good faith and fair dealing. He alleged that he suffered damages as a result of the “subpar legal services” provided by WSHB in connection with the Tovar litigation. B. Summary Judgment Salazar moved for summary adjudication on June 20, 2024. He sought a determination that the settlement agreement released his defamation claims against Whelan as a matter of law. He also sought summary adjudication of WSHB’s affirmative defenses.3 WSHB moved for summary judgment or adjudication the next day. WSHB argued that the settlement agreement did not release the defamation claim against Whelan. Alternatively, WSHB contended that Salazar could not establish that any release was the proximate cause of his damages, because the defamation claim lacked merit and Whelan had never asserted the release as a defense. WSHB submitted declarations from WSHB attorneys Kennon and Smith. Both attorneys stated that they were aware of the defamation action while the Tovar action was pending. In negotiating the settlement agreement, Kennon and Smith understood that the intent of the parties was to limit the release to the employment dispute. Additionally, WSHB 3 The trial court ultimately denied Salazar’s motion. That ruling is not at issue in this appeal. 7 submitted evidence that Salazar’s defamation counsel informed Smith that “any settlement in the Tovar Action must have a carve out that expressly states that the claims in the Defamation Action were not released.” WSHB agreed to “carve out the defamation case if we settle.” WSHB also submitted the transcript of the May 2022 hearing from the Tovar action regarding the settlement. On August 1, 2024, Salazar moved ex parte for an order directing the sheriff to serve a deposition subpoena on Whelan. Salazar stated that he had attempted to serve Whelan multiple times over the past two weeks. Salazar argued that Whelan’s testimony was “crucial to multiple aspects of Plaintiffs’ case, including (a) the truth or falsity of his statements; and (b) the drafting and negotiation of the Release Agreement at issue in the present case.” Salazar explained that Whelan’s deposition was needed before the close of discovery. However, Salazar did not mention the pending motion for summary judgment in the ex parte request. At the court’s direction, Salazar then made this same request in a noticed motion. Once again, he made no mention of the summary judgment motion in his argument about why he needed to take Whelan’s deposition. The court granted the motion for service of the subpoena on August 19, 2024. Salazar did not take Whelan’s deposition prior to the court granting summary judgment the following month. Salazar opposed the motion for summary judgment on August 15, 2024. He argued that the unambiguous terms of the settlement agreement released all claims, including the defamation claim and that Whelan was a beneficiary of the release. As to causation, he contended that Whelan’s statements were false and therefore defamatory. He also asserted that the timing of the anti- SLAPP proceedings in the defamation case meant that Whelan did not have 8 the chance to raise the release as a defense. Salazar decided to dismiss the claim rather than proceed when he believed it had been released. As such, he argued that WSHB’s “negligence caused Salazar to dismiss the [defamation] case because there was no claim to litigate.” In his supporting declaration, as relevant here, Salazar stated that WSHB assured him that the employment settlement would not release his defamation claim. Salazar signed the settlement agreement with this understanding. The trial court held a hearing on the motion on August 29, 2024. As the court stated and Salazar’s counsel confirmed, there was “no dispute that the intent, at least as to [Salazar] here, was—that the settlement of the employment case would not have any effect on the defamation case.” The court also noted that because Whelan was not a party to the settlement agreement, it viewed the salient issue as whether he was a third-party beneficiary. The court allowed the parties to submit further briefing on the application of the release to a third-party beneficiary and continued the hearing. In Salazar’s supplemental brief, he argued that Whelan was a third- party beneficiary to the settlement agreement, as the agreement expressly released “attorneys” from all claims. He also argued that extrinsic evidence, even if considered, supported this contention, as the parties stated their intent to release all claims “related to” the employment dispute. WSHB filed a supplemental brief, arguing that Whelan was not an intended third-party beneficiary and therefore had no right to enforce the release provisions of the settlement agreement as a matter of law. At the continued hearing on September 6, 2024, the court found that Whelan was not a third-party beneficiary to the release. The court explained 9 that “the test for a third-party beneficiary is the intent of the contracting parties, and I have a record in that regard. [Salazar] did not intend him to be a third-party beneficiary.” The court further found that Whelan did not invoke the release as a defense in the defamation case. The court concluded that the “circumstances do not appear to show the motivating purpose of the parties was to benefit anybody else. [¶] I’m unable to find that the release in the employment case extends to that defamation case to Whelan.” The court accordingly granted summary judgment for WSHB. The court entered judgment in favor of WSHB on October 1, 2024. Salazar appealed. DISCUSSION I. Legal Standards A defendant moving for summary judgment must show “that one or more elements of the cause of action ... cannot be established.” (§ 437c, subd. (p)(2).) The moving defendant “‘bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact’”; if the defendant carries this burden of production, it “‘causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.’” (LAOSD Asbestos Cases (2023) 87 Cal.App.5th 939, 945, quoting Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) The opposing party must make that showing with admissible evidence. (§ 437c, subd. (c); Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 761.) “On appeal from a summary judgment, we review the record de novo to determine whether triable issues of material fact exist.” (Carver v. Volkswagen Group of America, Inc. (2024) 107 Cal.App.5th 864, 877.) “‘In 10 performing an independent review of the granting of summary judgment, we conduct the same procedure employed by the trial court.’” (Ibid.) II. Analysis A. Salazar Did Not Meet his Burden of Raising a Triable Issue of Fact as to Whether Whelan was a Third-party Beneficiary Causation, as specifically used in legal malpractice cases, is an element of all of Salazar’s claims.4 (Slovensky, supra, 142 Cal.App.4th at p. 1528.) For legal malpractice, the causation that must be shown is “but for” causation—a plaintiff must show that “but for” the attorneys’ negligence the client would have obtained a different or better result. (Ibid.) WSHB could obtain summary judgment by demonstrating that there was no triable issue of fact as to but-for causation. (Ibid.) WSHB sought to do just that. As discussed above, Salazar’s theory of the case was that WSHB caused him harm by negligently drafting a release that released attorney Whelan from all claims. But according to WSHB, the release did not apply to Whelan, even if WSHB drafted it negligently. Thus, 4 “‘The elements of a cause of action for legal malpractice are (1) the attorney-client relationship or other basis for duty; (2) a negligent act or omission; (3) causation; and (4) damages.’” (Slovensky v. Friedman (2006) 142 Cal.App.4th 1518, 1528 (Slovensky).) Where, as here, a claim for breach of fiduciary duty is based upon a claim of negligent provision of attorney services, the standards for causation and damages applicable to claims for legal malpractice apply to that claim as well. (Knutson v. Foster (2018) 25 Cal.App.5th 1075, 1094 [“‘The rules concerning causation, damages, and defenses that apply to lawyer negligence actions ... also govern actions for [negligent] breach of fiduciary duty’”].) The same rules for causation and damage applicable to a claim for legal malpractice also apply to contractual claims (including claims for breach of the covenant of good faith and fair dealing) based on the alleged malpractice. (Kracht v. Perrin (1990) 219 Cal.App.3d 1019, 1022 [“Where the injury is suffered by reason of an attorney’s professional negligence, the gravamen of the claim is legal malpractice, regardless of whether it is pled in tort or contract”].) 11 says WSHB, Salazar would not have obtained a better result absent WSHB’s alleged negligence in drafting. Salazar disagrees and asserts that the release did in fact release Whelan as a matter of law. Or, he says, at a minimum the trial court should not have granted summary judgment on this issue because a triable issue of fact remained on causation. The law governing third-party beneficiaries dictates our resolution of this dispute. It is undisputed that Whelan was not an actual party to the settlement agreement in the Tovar action. Thus, in order to enforce the release provision, Whelan would have to establish that he was a third-party beneficiary entitled to enforce the release. (Neverkovec v. Fredericks (1999) 74 Cal.App.4th 337, 348 (Neverkovec) [“Release agreements are governed by the generally applicable law of contracts…. ‘A third party should not be permitted to enforce covenants made not for his benefit, but rather for others’”].) Importantly, unless the intent to make a person a third-party beneficiary is unmistakable from express contractual language, extrinsic evidence concerning the parties’ negotiations is necessary to demonstrate that a person was an intended third-party beneficiary of a release. “‘A putative third party’s rights under a contract are predicated upon the contracting parties’ intent to benefit’ it.” (Hess v. Ford Motor Co. (2002) 27 Cal.4th 516, 524 (Hess).) This intent cannot be gleaned from a “literal” interpretation of a contract alone. “‘The circumstance that a literal contract interpretation would result in a benefit to the third party is not enough to entitle that party to demand enforcement.’” (Ibid., quoting Neverkovec, supra, 74 Cal.App.4th at p. 348.) As the court in Neverkovec explained: “[b]ecause the court must consider the circumstances of the contracting parties’ negotiations to 12 determine whether a third party not named in the release was an intended beneficiary, it will seldom be sufficient for the third party simply to rely on a literal application of the terms of the release.” (Neverkovec, supra, 74 Cal.App.4th at p. 349.) Rather, “‘[w]hether a third party is an intended beneficiary ... to the contract involves construction of the parties’ intent, gleaned from reading the contract as a whole in light of the circumstances under which it was entered.’” (Ibid., quoting Jones v. Aetna Casualty & Surety Co. (1994) 26 Cal.App.4th 1717, 1725.) Put differently, the “burden is on the third party to prove the parties to the release agreement intended to benefit the third party.” (Vahle v. Barwick (2001) 93 Cal.App.4th 1323, 1328.) A third party can enforce a general release agreement “that purports to excuse everyone in the world from liability,” but to do so, the third party “must affirmatively show that the parties intended to release him.” (Id. at pp. 1328–1329; see also City of Hope v. Bryan Cave, L.L.P. (2002) 102 Cal.App.4th 1356, 1370.) Applying those principles here, we conclude that WSHB met its initial burden on summary judgment of showing that there was no triable issue of fact as to whether the parties to the Tovar settlement agreement intended to release Whelan. It did so by showing that the settlement agreement itself does not clearly release Whelan, and that the available evidence of the “circumstances of the contracting parties’ negotiations” demonstrates that the parties did not intend to release Whelan. (Neverkovec, supra, 74 Cal.App.4th at p. 349.) We agree with WSHB that the settlement agreement is, at a minimum, ambiguous regarding the scope of the released claims. That means under the law governing third-party beneficiaries, discussed above, the settlement agreement is not enough, by itself, to raise a triable issue of fact as to 13 whether Whelan was a third-party beneficiary without recourse to extrinsic evidence. (See Neverkovec, supra, 74 Cal.App.4th at p. 349.) Certainly, the release provision itself is broad. It includes a lengthy list of groups as “Released Parties” and states that the parties agreed to release “any and all present disputes.” However, in other places, the contract specifically identifies the parties’ intent to release “all claims arising out of and related to [Tovar’s] employment with [Salazar].” The agreement also expressly exempts from the confidentiality provision Whelan’s ability to defend himself in the defamation action. As WSHB points out, such a term would be unnecessary if the parties intended to release Whelan from that claim entirely. Thus, we cannot discern from the language of the agreement alone whether Whelan was a third-party beneficiary. Accordingly, whether there was a factual dispute over Whelan’s third- party beneficiary status turned on whether there was at least some extrinsic evidence revealing an intent to make Whelan a third-party beneficiary. (See Hess, supra, 27 Cal.4th at pp. 529–530.) WSHB presented considerable extrinsic evidence showing that the parties did not intend to release Whelan. The parties agreed on the record at the May 2022 hearing that they intended only to release claims arising from the employment dispute. Whelan and WSHB, as attorneys for the parties and drafters of the settlement, confirmed that understanding to the court. Salazar subsequently submitted a written declaration confirming that he understood that the settlement agreement would not release his defamation claim. He declared that he signed the agreement with this understanding. And, as we noted, Whelan himself never sought to enforce the release or claimed to be an intended beneficiary. 14  Thus, WSHB met its burden of demonstrating that the parties did not intend to release Whelan. The burden shifted to Salazar to offer extrinsic evidence raising a triable issue of fact on this point. We stress that Salazar’s burden was not great. He simply needed to point to some competent extrinsic evidence, direct or circumstantial, suggesting that the parties intended to release Whelan. But Salazar did not do so. Instead, Salazar relied on the language of the release itself. For reasons we have just explained, that was not enough to allow Salazar to survive summary judgment. Salazar did make one argument about extrinsic evidence. He argued that although the parties stated on the record in the Tovar action that they intended to release only claims related to the employment dispute involving Tovar, they might have meant to include the claims in the defamation action. He argued that there was some relation between the facts in the defamation case and the Tovar action. For example, he noted that one of the fire- damaged cars that Whelan described in his allegedly defamatory statement was owned by a potential witness who claimed that Salazar had tried to pay her for testimony against Tovar. He also argued that the alleged firebombing and witness tampering was discussed in depositions and discovery motions in the Tovar action. This evidence, such as it is, does not raise a triable issue as to the parties’ intent, even construed in the light most favorable to Salazar. The question is whether the parties intended to release Whelan when they settled the Tovar action. We cannot discern such an intent from a tangential factual relationship between the Tovar case and some of Whelan’s statements. Nor can we discern such intent from the fact that deposition or discovery questions that were potentially relevant to the defamation action were asked 15 in the Tovar action. Rather, to show that Whelan was an intended third- party beneficiary, Salazar had to present some affirmative or circumstantial evidence—extrinsic to the release itself—that the parties in fact intended to make Whelan a third-party beneficiary. Salazar introduced no such evidence.5 We recognize that, generally, “it is a question of fact whether a particular third person is an intended beneficiary of a contract.” (Prouty v. Gores Technology Group (2004) 121 Cal.App.4th 1225, 1233.) “However, where, as here, the issue can be answered by interpreting the contract as a whole and doing so in light of the uncontradicted evidence of the circumstances and negotiations of the parties in making the contract, the issue becomes one of law that we resolve independently.” (Ibid.; see also Neverkovec, supra, 74 Cal.App.4th at p. 351 [“Unless that extrinsic evidence is in conflict, the question is one of law”].) Here, the extrinsic evidence of the parties’ intent comes solely from WSHB and is uncontradicted. Salazar introduced no contrary extrinsic evidence suggesting that the parties 5 During oral argument, Salazar also pointed to evidence that two of his companies (Bobby Salazar’s Mexican Food Products, Inc. and Bobby Salazar’s Express, Inc.) were not named as defendants in the Tovar action but were signatories to the settlement agreement. Those two companies, along with Salazar and his other company, were plaintiffs in the defamation action. For the first time at oral argument, Salazar suggested that this evidence supported a finding that the parties to the settlement agreement intended to release the defamation claim along with the employment claims. Salazar failed to include this argument in his briefs on appeal. He has therefore forfeited the issue and we need not address it. (See, e.g., Applied Materials v. Workers' Comp. Appeals Bd. (2021) 64 Cal.App.5th 1042, 1080, fn. 16 [“‘We do not consider arguments that are raised for the first time at oral argument’”]; see also Julian v. Hartford Underwriters Ins. Co. (2005) 35 Cal.4th 747, 761, fn. 4 [issues not properly addressed in the opening brief will be disregarded].) 16 intended to release Whelan. Thus, it was appropriate for the trial court to rule summarily in WSHB’s favor on the issue of causation. B. Salazar Did Not Properly Raise the Issue of Continuing the Hearing Date to Take Whelan’s Deposition On appeal, Salazar also argues that the trial court’s grant of summary judgment was erroneous for another reason. He argues that the trial court should have allowed Salazar to depose Whelan before ruling on the summary judgment motion. He asserts that the trial court should have continued the hearing date on the motion for summary judgment to allow for Whelan’s deposition. However, Salazar did not properly raise this issue below. The trial court must grant a continuance of the hearing on a motion for summary judgment “upon a good faith showing by affidavit that a continuance is needed to obtain facts essential to justify opposition to the motion.” (Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 714, citing § 437c, subd. (h).) “The nonmoving party seeking a continuance [pursuant to § 437c] ‘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 these facts.’” (Frazee v. Seely (2002) 95 Cal.App.4th 627, 633.) There is no evidence in the record before us that Salazar ever requested a continuance of the summary judgment hearing to depose Whelan. Notably, Salazar did not mention deposing Whelan in his opposition to summary judgment at any time. He did not raise the issue in his initial summary judgment opposition, in his supplemental briefing addressing the third-party beneficiary issue, or at either of the two hearings the trial court conducted on the motion. It is true that Salazar successfully petitioned the trial court to 17 allow service of a deposition subpoena on Whelan through the sheriff on August 19, 2024. He did so after asserting that Whelan was opposing service. But even in that motion to effectuate service—granted less than a month before the court granted WSHB’s motion for summary judgment—Salazar did not indicate that he wanted to obtain Whelan’s testimony in order to oppose the motion for summary judgment. As such, Salazar made no showing that he was entitled to a continuance under section 437c. The trial court did not err in failing to give Salazar a continuance he never requested. C. The Trial Court’s Failure to Specify Reasons for its Decision Does Not Support Reversal Finally, Salazar contends the trial court erred by failing to specify the reasons for its decision, in violation of section 437c, subdivision (g). That section provides, “[u]pon the grant of a motion for summary judgment on the ground that there is no triable issue of material fact, the court shall, by written or oral order, specify the reasons for its determination. The order shall specifically refer to the evidence proffered in support of and, if applicable, in opposition to the motion that indicates no triable issue exists.” (§ 437c, subd. (g).) Salazar notes that the court’s brief oral statement during the hearing did not identify the evidence supporting a determination that there was no triable issue of fact as to the parties’ intent. Nor did the court provide further analysis in its very short written minute order granting summary judgment. Assuming without deciding that the trial court erred by failing to comply with the requirements of section 437c, subdivision (g), that failure does not warrant reversal. A violation of the strictures of section 437, subdivision (g) is harmless error where “independent review establishes the 18 validity of the judgment.” (Soto v. State of California (1997) 56 Cal.App.4th 196, 199; see also Conley v. Matthes (1997) 56 Cal.App.4th 1453, 1459–1460 [treating trial court’s “failure to specify the reasons for its ruling as harmless error because we review the trial court’s ruling, not its rationale”].) Here, we have independently reviewed the record. For the reasons given above, we find that the record supports the trial court’s decision to grant summary judgment. Accordingly, any error by the trial court in failing to provide specific reasons for its determination is harmless. In sum, we see no error warranting reversal.6 DISPOSITION The order granting summary judgment is affirmed. Respondents are entitled to their costs on appeal. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS DAUM, J. We concur: MORI, Acting P. J. TAMZARIAN, J. 6 WSHB also raises other arguments in support of affirmance in its appellate briefing. It argues that the oral settlement agreement before the trial court in the Tovar action could be enforced independently of the written settlement. It also argues that Salazar could not show the element of damages on his any of his claims against WSHB because, according to WSHB, the underlying defamation action against Whelan entirely lacked merit. Because we affirm for the reasons stated in this opinion, we need not reach those arguments. 19