Continuance Request for ContinuanceLerma v

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California
Law Dictionary
Appeal - Notice
Continuance Request for Continuance
(Lerma v. County of Orange)
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Continuance-Request for Continuance
(Lerma v. County of Orange)

DISCUSSION

A. Request for Continuance

“‘“‘Generally, power to determine when a continuance should be granted is within the discretion of the court, and there is no right to a continuance as a matter of law. [Citation.]’”’ [Citation.] An exception is created by Code of Civil Procedure section 437c, subdivision (h), which mandates that the court grant a continuance of a 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.’” [Citations.]’ [Citation.]” (Mahoney v. Southland Mental Health Associates Medical Group (1990) 223 Cal.App.3d 167, 170.)

In order to determine whether a continuance is mandatory, then, we look to Code of Civil Procedure section 437c, subdivision (h). That subdivision provides in pertinent part: “If it appears from the affidavits submitted in opposition to a motion for summary judgment . . . 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 affidavits to be obtained or discovery to be had or may make any other order as may be just.”

The court denied the Lermas’ request for a continuance on finding they had not presented competent evidence to establish the grounds for a continuance. Indeed, the Lermas did not provide any affidavits whatsoever indicating what facts essential to justify opposition may have existed. The only hint provided as to what essential facts might have been available was contained in the body of the opposition. In the opposition, the Lermas emphasized that it was not roadway design but shrubbery maintenance that was at issue, and stated that Pasqualetto had testified at deposition that the shrubbery in the center divider obscured the view of approaching vehicles. From this, one might infer that the Lermas, had they more time, would have presented evidence sufficient to raise a triable issue of fact as to whether the state of the shrubbery, rather than the roadway design, caused the allegedly dangerous condition of property.

The only declaration the Lermas actually offered was the declaration of their incapacitated attorney. He stated in a conclusory fashion that he believed he would “be able to obtain the necessary evidence and declarations to successfully oppose the motion and establish a triable issue of fact to each of the claimed undisputed facts raised by the city.” However, he gave no clue as to what evidence or declarations he might present. The only hint in this regard, as stated above, was the discussion of the shrubbery, as contained in the body of the opposition.

Both the city and the county maintain that, without an explanation as to what specific evidence existed that would have supported the opposition, the continuance was properly denied. As this court stated in Frazee v. Seely (2002) 95 Cal.App.4th 627, 633 with respect to section 437c, subdivision (h),“The nonmoving party seeking a continuance ‘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. [Citations.]’ [Citation.]” Generally speaking, the party seeking the continuance must “provide supporting affidavits or declarations detailing facts that would establish the existence of controverting evidence . . . . [Citation.]” (American Continental Ins. Co. v. C & Z Timber Co. (1987) 195 Cal.App.3d 1271, 1280.)

Here, the Lermas were nonspecific. The only thing before the court was the attorney’s bald assertion that facts essential to justify opposition may have existed, but there was no clear statement as to what those facts may have been. Code of Civil Procedure section 437c, subdivision (h) requires more than a simple recital that “facts essential to justify opposition may exist.” The affidavit or declaration in support of the continuance request must detail the specific facts that would show the existence of controverting evidence. (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 548; American Continental Ins. Co. v. C & Z Timber Co., supra, 195 Cal.App.3d at p. 1280.)

There is good reason for this more exacting requirement. The statute cannot be employed as a device to get an automatic continuance by every unprepared party who simply files a declaration stating that unspecified essential facts may exist. The party seeking the continuance must justify the need, by detailing both the particular essential facts that may exist and the specific reasons why they cannot then be presented. The Lermas failed to detail the facts as required. This being the case, the court correctly determined that a continuance was not mandatory under Code of Civil Procedure section 437c, subdivision (h). This was not, however, where the analysis should have ended.

When a continuance of a summary judgment motion is not mandatory, because of a failure to meet the requirements of Code of Civil Procedure section 437c, subdivision (h), the court must determine whether the party requesting the continuance has nonetheless established good cause therefor. That determination is within the court’s discretion. (Mahoney v. Southland Mental Health Associates Medical Group, supra, 223 Cal.App.3d at pp. 170-172; see also Scott v. CIBA Vision Corp. (1995) 38 Cal.App.4th 307, 313-314, 326.)

As the court in Mahoney v. Southland Mental Health Associates Medical Group, supra, 223 Cal.App.3d at page 170 indicated, “a review of the standards governing requests for continuance of trial dates is instructive.” Among the factors to be considered are the death or illness of the attorney. (Id. at p. 171, fn. 1.) Here, the dire medical condition of the attorney was plain and good cause for a continuance was clearly shown. It was an abuse of discretion to deny the continuance. The court’s order, in essence, would have had the effect of requiring an attorney who was hospitalized with a life-threatening condition to be sifting through evidence, contacting affiants and drafting documents while lying in his hospital bed, utterly without knowledge of the requirement that he so proceed, in order to avoid losing his clients’ case on summary judgment when he emerged from the hospital.

The facts in this case closely parallel those in Hernandez v. Superior Court (2004) 115 Cal.App.4th 1242.[2] In Hernandez, the plaintiff’s attorney sought a continuance of the trial date due to his battle with pancreatic cancer. The trial court heard his ex parte application on September 12, 2003, three days before the initially scheduled trial date. Although the court continued the trial date to December 15, 2003, the attorney died on September 20, 2003. Nine days later, the plaintiff learned of the attorney’s death, and immediately began searching for a new lawyer. He met with a replacement attorney on October 2, 2003. That attorney stated that, due to prior trial commitments, he would be unable to take the case unless it was continued beyond December 15, 2003. He recommended that the plaintiff request both a continuance and permission to reopen discovery.

The plaintiff filed an ex parte application for relief, which was heard on October 17, 2003. The court observed that it had already continued the trial date for three months due to the original attorney’s illness. It further continued the trial date to January 26, 2004, and denied the plaintiff’s request to reopen discovery, even though plaintiff’s replacement attorney was unavailable to start trial on that date and the plaintiff was scheduled for spinal surgery in December 2003.

The plaintiff filed a petition for a writ of mandate, which was granted. The appellate court held that the trial court had abused its discretion in failing to grant a longer continuance and to reopen discovery. (Hernandez v. Superior Court, supra, 115 Cal.App.4th at pp. 1245-1246.) As the court stated, “‘While it is true that a trial judge must have control of the courtroom and its calendar and must have discretion to deny a request for a continuance when there is no good cause for granting one, it is equally true that, absent [a lack of diligence or other abusive] circumstances which are not present in this case, a request for a continuance supported by a showing of good cause usually ought to be granted.’ [Citation.]” (Hernandez v. Superior Court, supra, 115 Cal.App.4th at pp. 1246-1247.) The court also stated, “If plaintiff’s counsel’s serious physical illness and its debilitating effects culminating in death during the final stages of litigation are not good cause for continuing a trial and reopening of discovery, there is no such thing as good cause. A plaintiff in a personal injury action is not chargeable with the continued good health of his or her attorney. Forcing such a plaintiff to trial without counsel or adequately prepared counsel is not likely to ensure fairness, the overall policy of the law. [Citation.]” (Id. at p. 1244.)

While in the case before us the plaintiffs did not seek the continuance of a trial date, they did seek the continuance of the summary judgment motion. The reason for the continuance request was the same as in Hernandez v. Superior Court, supra, 115 Cal.App.4th 1242 — to permit the plaintiffs to be represented by physically able counsel. As stated in Hernandez, “The death or serious illness of a trial attorney or a party ‘should, under normal circumstances, be considered good cause for granting the continuance of a trial date[.]’ [Citation.]” (Id. at pp. 1247-1248.) Likewise, it is good cause for granting the continuance of a summary judgment motion.

As we emphasized in Bahl v. Bank of America (2001) 89 Cal.App.4th 389, at pages 398-399, “Judges are faced with opposing responsibilities when continuances for the hearing of summary judgment motions are sought. On the one hand, they are mandated by the Trial Court Delay Reduction Act (Gov. Code, § 68600 et seq.) to actively assume and maintain control over the pace of litigation. On the other hand, they must abide by the guiding principle of deciding cases on their merits rather than on procedural deficiencies. [Citation.] Such decisions must be made in an atmosphere of substantial justice. When the two policies collide head-on, the strong public policy favoring disposition on the merits outweighs the competing policy favoring judicial efficiency. [Citation.]” This is not a case where a party has been dilatory in its efforts and the court needs to seize control of the situation and force the party to engage in diligent pursuit of litigation objectives. It is simply a case in which the frailties of mankind’s physical housing created a brief interference with the efficient resolution of a motion.

The city and county disagree. While they express their sympathies for the attorney’s health, they insist his condition was not sufficient reason to grant the continuance. Moreover, they point out that the summary judgment motion was scheduled for hearing just 90 days before the scheduled trial date. The county argues that the Lermas’ attorney should have already had on hand all evidence necessary to oppose the motion, and that, therefore, a continuance should have been unnecessary. We could not disagree more. Just because the evidence should have been on hand does not mean that the attorney, in his postoperative condition, had the physical ability to sort through that evidence, organize it, prepare a discussion of it, and file a thorough document with the court. A continuance was clearly necessary. Lerma v. County of OrangeG0321207/13/04

Jul 13 2004

G032120
[PDF] [DOC]

Lerma v. County of Orange 7/13/04 CA4/3

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