On July 29, 2021, in the case of Braganza v. Albertson’s LLC, (2021) 67 Cal. App. 5th 144, the Fourth District Appellate District affirmed the trial court’s denial of Plaintiff’s motion to continue the hearing for a Motion for Summary Judgment and thereafter granting the defense’s motion. The key: Plaintiff’s counsel sought the continuance on the ground that she needed additional discovery to oppose the motion but did not demonstrate diligence in timely conducting discovery before seeking the continuance.

The timeline of this case is crucial to the Court of Appeal’s decision. Plaintiff sued Defendant for personal injuries and other damages she sustained as a result of slipping and falling on the floor of Defendant’s grocery store on December 5, 2017. On December 18, 2018, Defendant brought a Motion for Summary Judgment to be heard on March 6, 2019, meaning the opposition would be due 14 days prior to the hearing, or February 20th. On February 4, 2019, Plaintiff served an inspection demand on Defendant, demanding to inspect and test the floor in the area where Plaintiff fell on March 12, 2019—six days after the Motion for Summary Judgment was to be heard. On February 19, 2021, instead of filing an opposition, Plaintiff filed a request to continue the hearing on the motion in order to allow her time to conduct discovery necessary to oppose the motion (Code Civ. Proc., § 437c, subd. (h)). The declaration of Plaintiff counsel stated:

“that the continuance was necessary (1) in order to allow plaintiff’s expert forensic engineer to conduct a coefficient of friction test on the floor area where plaintiff fell, and (2) to allow plaintiff’s expert time to prepare a declaration in opposition to Albertson’s motion.”

The declaration went on to state that the absence of Plaintiff’s own expert’s coefficient of friction test, Plaintiff did not have evidence to oppose the second ground of Albertson’s motion. The trial court denied the continuance based on Plaintiff’s failure to show diligence in timely conducting discovery and granted the motion for summary judgment. Plaintiff appealed.

The Fourth Appellate District affirmed. The court, citing Cooksey v. Alexaskis (2004) 123 CA4th 246 at 257, stated:

“[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; see Rodriguez v. Oto, supra, 212 Cal.App.4th at pp. 1038–1039.)” Braganza supra at page 156

If you want the court to grant your motion to continue the motion for summary judgment/summary adjudication pursuant to Code Civ. Proc., § 437c, subd. (h) you 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.” Braganza, supra at page 156

Helpful Hint: If you are served with a Motion for Summary Judgment, don’t put off reviewing it because of the long notice period.  You need to  determine if you will need discovery to oppose the motion and serve it.

Sometimes, when you follow the rules regarding the expert witness demand and the initial expert witness disclosure and declaration and are now in receipt of opposing party’s expert disclosure, you find that the opposing party plans to call experts at trial in a subject area which you assumed wouldn’t require expert testimony, or that you hadn’t anticipated. If you didn’t disclose experts on the subject, you can serve a Supplemental Expert Disclosure within 20 days of the exchange of expert witness disclosure.

Code of Civil Procedure section 2034.280 titled Submission of supplemental expert witness list; When permitted; Expert witness declaration; Availability of experts for deposition reads as follows: 

(a) Within 20 days after the exchange described in Section 2034.260, any party who engaged in the exchange may submit a supplemental expert witness list containing the name and address of any experts who will express an opinion on a subject to be covered by an expert designated by an adverse party to the exchange, if the party supplementing an expert witness list has not previously retained an expert to testify on that subject.

(b) This supplemental list shall be accompanied by an expert witness declaration under subdivision (c) of Section 2034.260 concerning those additional experts, and by all discoverable reports and writings, if any, made by those additional experts.

(c) The party shall also make those experts available immediately for a deposition under Article 3 (commencing with Section 2034.410), which deposition may be taken even though the time limit for discovery under Chapter 8 (commencing with Section 2024.010) has expired.

Beware, you cannot use the supplemental expert disclosure procedure if you did not participate in the original exchange procedure.  Fairfax v. Lords (2006) 138 CA4th 1019. Courts have also held that an attorney’s decision to ignore statutory requirements does not constitute mistake, inadvertence, surprise, or excusable neglect. (See Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 276; Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 682;  Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1129).

You also may not use the supplemental disclosure procedure set forth in CCP 2034.280 in the following instances:

In each of these cases, the parties should bring a motion under C.C.P. §2034.610 et seq. to augment or amend the expert witness list and declaration.

For a further discussion on improper supplemental disclosures see the blog  When Opposing Counsel Tries to use Improper Supplemental Disclosures to its Benefit, Here’s How to Fight Them.

 

 

 

 

 

 

 

If a party has timely served a Demand for Simultaneous Exchange of Expert Trial Witness Information pursuant to Code of Civil Procedure section 2034.210, then “all parties who have appeared in the action shall exchange information concerning expert witnesses in writing on or before the date of exchange specified in the demand.”C.C.P. §2034.260(a). Unless there is a court order specifying otherwise, that date for the simultaneous exchange is 50 days before the initial trial date, or 20 days after service of the demand, whichever is closer to the trial date. C.C.P. §2034.230(b).

Continue Reading 50 Days Before Trial—It’s Expert Disclosure Time

The biggest burden in bringing motions to compel further responses is the preparation of the separate statement of items in dispute pursuant to CRC, Rule 3.1345. In my blogs and at seminars, I have advised parties to prepare their meet and confer letters in the format of a separate statement. See my blog “EXHIBIT A—The Meet and Confer Letter.” As a Discovery Referee I have required parties to exchange Discovery in Word format. I find it is helpful for two reasons: (1) the parties can meet and confer using the “Track Changes” function in Word and hopefully agree on the modifications to the propounded written discovery, and (2) parties can easily prepare the separate statement of items in dispute if a motion needs to be filed. This takes out the grunt work of having to retype the interrogatories, requests for admissions and requests for documents, as well as their responses when preparing or responding to the separate statement when only a hard copy was served.

Continue Reading In Order to Facilitate the Discovery Process–Serve Your Discovery in Electronic Form

Assume you receive the following response to your Requests for Production of Documents:

Responding party hereby incorporates its general objections as if fully stated herein. Responding party objects to this request to the extent it seeks information protected from disclosure by the attorney-client privilege and/or work product doctrine, or any other applicable privilege. Responding party objects as it invades their and third parties’ right of privacy. Responding party objects that the request fails to specifically describe each individual item sought or reasonably particularize each category of item sought. Responding party objects that it is unduly burdensome and overbroad. Responding party objects to this request as it does not seek relevant documents or documents reasonably calculated to the discovery of admissible evidence.  Responding party objects that plaintiff has equal access to these documents. Responding party objects that the request seeks documents already in plaintiff’s possession custody or control. Notwithstanding said objections, no documents.

In reviewing the response, it is likely you are focusing in on the fact that there are garbage objections to your request and that you weren’t provided a privilege log. However, there is another issue that you should take very seriously—the document response is not in compliance with California Code of Civil Procedure section 2031.230.

Continue Reading Nail Down Whether the Documents You are Seeking ever Existed and Where They are Now 

The greatest discovery abuses come from responses to Requests for Production of Documents.  Many responses contain a myriad of garbage objections, fail to contain a privilege log, along with producing documents that are not organized by category. Due to the responding party’s failure to comply with Codes of Civil Procedure § 2031.220, §2031.230, §2031.2400 and §2031.280, a motion to compel further responses and production of documents is the most common motion on the court’s docket. It is also the most time-consuming motion to not only prepare, but for the court to rule on.

On January 1, 2020, Code of Civil Procedure §2023.050 became effective which imposes mandatory sanctions for motions regarding Requests for Production of Documents. This new statute requires the court to impose mandatory sanctions on motions involving requests for production of documents.  This sets up a party’s ability to bring issue, evidence and terminating sanctions as there will be an adjudication of prior discovery abuse.

Continue Reading New Discovery Sanction Regarding Requests for Production of Documents

There were three changes to the Discovery Act that became effective on January 1st, 2020 which can be found in Code of Civil Procedure sections  2031.280, 2016.090 and 2023.050. This blog will discuss the change to C.C.P. §2031.280 and its significance.

California Code of Civil Procedure § 2031.280 titled Form in which documents to be produced; Form for producing electronically stored information; Translation of data subdivision (a) states as follows:

Old Statute:

(a) Any documents produced in response to a demand for inspection,  copying, testing, or sampling shall either be produced as they are kept in  the usual course of business, or be organized and labeled to correspond with the categories in the demand.

            New Statute:

 (a) Any documents or category of documents produced in response to a demand for inspection, copying, testing, or sampling shall be identified with the specific request number to which the documents respond.

            Difference:

Responding party can no longer produce documents kept in the “usual course of business.

Continue Reading Make Sure You are Aware of the New Document Response Requirements

As stated in the blog It’s Not a Discovery Device, But…, a Demand for Bill of Particulars is NOT a discovery device, but an extension of the complaint or a cross-complaint [complaint].  Unlike interrogatories and deposition testimony, a  Bill of Particulars is conclusive as to the items and amounts claimed and no other evidence is admissible at trial.    More importantly, if the court finds that any of the line items are deficient it can strike the entry and preclude plaintiff/cross-complainant [plaintiff] from proving the debt is owed.

Continue Reading If Plaintiff’s Bill of Particulars is Improper, Evasive and/or Incomplete; You must Bring a Motion or You Waive Your Objections

Pre-trial discovery is the heart and soul of litigation. It enables the parties to evaluate and prepare their case for mediation, motions for summary judgment or summary adjudication and for trial. The propounding of discovery also leads to discovery disputes and then to discovery motions–all which can threaten to overwhelm the litigation of the case. However, due to the court holidays ordered by the Judicial Council during this pandemic, parties were not able to have their discovery disputes heard by the courts, thus, stalling their cases. Now with the courts reopening, the backlog of motions previously taken off calendar will need to be rescheduled. Meanwhile, new motions are being filed. This unprecedented situation begs the question from attorneys: When will my discovery motion be heard?

Continue Reading When Will My Discovery Motion Be Heard?

 

Life as we knew it has been put on hold due to COVID-19.  Courts are closed, deadlines are extended, and court dates have been continued.  As the courts establish “new norms” for their operations, access to the civil courts may be limited and further delayed.  It is not clear what civil matters will receive priority. Civil law and motion matters taken off calendar due to court closures will need to be rescheduled, and newly filed motions added to crowded calendars. It could take months or years before the court dockets return to normal.  Scheduling new law and motion matters and having them heard will be challenging for all litigators.  However, courts and counsel have available options to address the backlog.

Continue Reading Civil Litigation and COVID-19: Justice Need Not Be Delayed