Employing Discovery to Continue a Summary Judgment Hearing
John A. Schena, Esq.
Schwartz Semerdjian Ballard & Cauley LLP
Nearly every opposition to demurrer closes with a fallback position: an accompanying request for leave to amend. I often wonder why the same just-in-case approach is not more frequently employed in oppositions to motions for summary judgment. California Code of Civil Procedure section 437c(h) provides its own fallback provision, which if properly executed requires that the court either deny the motion in its entirety or at the very least grant a continuance of the summary judgment hearing. In pertinent part, 437c(h) 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, then be presented, the court shall deny the motion, or order a continuance to permit...discovery to be had...
At the heart of such a request is a showing of the need to conduct additional discovery for a sufficient opportunity to oppose the motion.
While the provision mandates either a denial or a continuance of the motion for summary judgment, both technical and equitable thresholds must first be met. The request may be made by ex parte application before the opposition is due or even with the opposition itself, but it is not enough to merely make the request as a suggested alternative within the body of an opposition. In this sense, 437c(h) relief is more difficult to obtain than leave to amend following a demurrer, as an accompanying affidavit from a party or counsel is required. The declaration in support of the request must show that there is a reason to believe that facts exist which are essential to opposing the summary judgment motion and provide a suitable explanation as to why those facts have not yet been obtained. See Cooksey v. Alexakis (2004) 123 Cal.App.4th 246. In short, a description of what fact is out there that needs to be discovered, why it has not yet been discovered, and why it is important for resolution prior to the summary judgment hearing is essential. The need to conduct any facet of discovery may justify a continuance, whether it is the deposition of a key witness who has been difficult to locate, a document which has not been produced, or even a response to an interrogatory that has been evaded. However, like leave to amend following a sustained demurrer, 437c(h) relief is liberally granted once the necessary thresholds have been met. If the party opposing summary judgment is able to make this showing in good faith, the trial court must at the very least grant a continuance. Park v. First American Title Co. (2011) 201 Cal.App.4th 1418.
Naturally, the facts which are believed to exist must go to the issues actually raised in the summary judgment motion, and not a tangential matter otherwise suitable for discovery. Combs v. Skyriver Communications, Inc. (2008) 159 Cal.App.4th 1242. Better put, if the additional discovery sought is not essential to crafting the opposition itself, there will be no grounds to justify a continuance. As such, the request will likely be denied in the event the issue is a legal question which can be resolved on its face absent the information sought to be discovered in the request. See Mueller v. County of Los Angeles (2009) 176 Cal.App.4th 809. By means of a example, a request for continuance to obtain documents essential to prove damage is futile if summary judgment may be granted on failure to show causation.
Likewise, denial of a continuance may be proper when some discovery has actually already been obtained relevant to the topic. Cheviot Vista Homeowners Ass’n v. State Farm & Cas. Co. (2006) 143 Cal.App.4th 1486. A continuance is not warranted simply because you did not hear what you wanted to hear at the opposing party’s deposition – or more frightening to the practitioner because you forgot to ask the proper question. The continuance mechanism in 437c(h) is not a proper substitute for a comprehensive discovery plan and cannot be used to clean up mistakes. Further, a continuance will not lie if the deadline to bring a motion to compel has passed.
An interesting aspect for consideration is the role of diligence in seeking the discovery prior to the request for a continuance. While the language in section 437c(h) does not specifically address good faith or diligence, nearly every decision denying a continuance has rested in part on a failure to find the same. Indeed, some courts have found that a lack of diligence in conducting discovery alone is enough to justify a denial of a requested continuance. See Cooksy, supra, 123 Cal.App.4th at 257. But, others have found that diligence is not a make or break factor in the test of a continuance. Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 398. Regardless, it is likely the court will require a “justifiable reason” why essential facts cannot be presented in opposition – and that justification will require detailing what has occurred in discovery, what has not, and why. Accordingly, the fact that you have been stymied by opposing counsel’s failure to produce documents should be addressed in your declaration lest the court believe that you did not diligently pursue discovery. However, do not rely solely on detailing discovery abuse in opposition to a motion for summary judgment as it is not a substitute for an actual request for a continuance under 437c(h)’s guidelines. See Davis v. Nadrich (2009) 174 Cal.App.4th 1, 6-7. Regardless, given the lengthy notice requirements detailed in the motion for summary judgment statute one would believe that a truly diligent party would have ample time to conduct discovery as to all the relevant issues prior to the deadline for filing an opposition.
If presented with a summary judgment motion for which you do not have all the facts you believe you will need to properly oppose, a request for 437c(h) should be in your arsenal. However, it should not be your first resort as you will be required to explain why you did not conduct the proposed discovery earlier. Thus, upon receipt of the moving papers immediately identify the information needed to provide a proper opposition and initiate discovery. If the discovery does not prove to be fruitful, do not wait until the opposition is due to seek a denial or continuance but instead present any issue before the judge in prompt fashion. The likelihood that a discovery dispute will be resolved in your favor is greater if continuance of an upcoming summary judgment hearing hangs in the balance. On the reverse side of the coin, a vigorous position with respect to preventing discovery could backfire as the court may deny your summary judgment motion if the opposing party believes prevents a convincing case that you may be withholding information necessary to oppose – even if that information does not exist. Sometimes the best defense requires knowing which battles to fight.