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.