This final installment in the series will discuss the law applicable to motions to continue the hearing date, requesting oral argument, and the propriety of renewed motions.

My usual disclaimer applies. Nothing herein is to be considered a local rule of court, an unwritten rule, or a court policy. What follows are simply the views of one judge, who reserves the right to change his mind.

Continuances: The summary judgment statute sets forth the procedure to follow should a continuance of the hearing date be sought. “The application to continue the motion to obtain necessary discovery may . . . be made by ex parte motion at any time on or before the date the opposition response to the motion is due.” CCP § 437c(h). Hence, it is too late to request a continuance any later than 14 days before the hearing, the date opposition papers are due to be filed. In Ambrose v. Michelin N. Am. Inc. (2005) 134 Cal.App.4th 1350, the Court of Appeal noted that the statutory language is “unambiguous and binding.” The Court did note that the trial court does have discretion to grant CCP § 473 relief with respect to a motion to continue based on the excusable neglect of counsel, but upheld the denial of such relief where counsel asserted that his failure to transfer a handwritten section of the memorandum to the final written product because of the “stresses of a busy law practice” was not the type of relief contemplated by section 473 since it was conduct that fell below the professional standard of care. See also Prieto v. Loyola Marymount University (2005) 132 Cal.App.4th 290 (no “attorney fault” relief under CCP § 473(b) for failure to file an opposition).

The opposing party has two opportunities to request a continuance to obtain evidence necessary to defeat the motion: (1) by ex parte motion prior to the date the opposition papers are due, or (2) in the opposition papers themselves when the determination will be made at the time of the hearing. The relevant portion of CCP § 437c provides in pertinent part as follows: “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 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.].” Frazee v. Seely (2002) 95 Cal.App.4th 627, 633. See also Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 254. “It is not sufficient . . . merely to indicate further discovery or investigation is contemplated. The statute makes it a condition that the party moving for a continuance show ‘facts essential to justify opposition may exist.’” Roth v. Rhodes (1994) 25 Cal.App.4th 530, 548.

The decision whether to grant a continuance is within the discretion of the trial court. Frazee v. Seely, supra, 95 Cal.App.4th at p. 633. However, in Bahl v. Bank of America (2001) 89 Cal.App.4th 389, the appellate court stated that a continuance is “virtually mandated” when there has been a good faith showing that a continuance is needed to obtain evidence essential to justify the opposition to the motion. Id. at p. 395. In addition it is error for the trial court to continue the summary judgment hearing in the absence of a declaration that fully complies with the requirements of Code of Civil Procedure § 437c(h). Haskell, Inc. v. Superior Court (2002) 33 Cal.App.4th 963, 976 (court continuance until Defendant “fully complied” with all outstanding discovery requests responses are completed” held to be improper).

“It is not sufficient . . . merely to indicate further discovery or investigation is contemplated. The statute makes it a condition that the party moving for a continuance show ‘facts essential to justify opposition may exist.’” Roth v. Rhodes, supra, 25 Cal.App.4th at 548. The requirements of CCP § 437c, subdivision (h) are not met by the submission of an attorney’s declaration that merely says discovery remains to be done, without mentioning what facts it might disclose that could defeat summary judgment. Ibid.; see also Scott v. CIBA Vision Corp. (1995) 38 Cal.App.4th 307, 326.

Even if there is a showing that further discovery is necessary to produce facts essential to justify opposition, the motion for a continuance will still be denied if the moving party has not shown diligence in pursuing that discovery. Cooksey v. Alexakis, supra, 123 Cal.App.4th at 257. In Cooksey the appellate court upheld the trial court’s denial of a continuance because (1) there was no justification given for the delay in obtaining the discovery, and (2) plaintiff’s counsel admitted that he had made a tactical decision to not obtain the discovery in question until later in the proceedings. Indeed, in Cooksey, the plaintiff had served no discovery request until served with the motion for summary judgment.

Where a continuance of a summary judgment motion is not mandatory, because of a failure to meet the requirements of Code of Civil Procedure § 437c (h), the Court should exercise its discretion to determine whether the party requesting the continuance has nonetheless established good cause therefore. Lerma v. County of Orange ( 2004) 120 Cal. App. 4th 709, 716 (trial court abused its discretion when it denied a continuance due to counsel’s illness, notwithstanding that a continuance for such reason is not mandatory under the statute).

The failure to timely file an opposition will usually result in disastrous consequences. First, the Court has discretion to refuse to consider such late filed document. Hobson v. Raychem Corp. (1999) 73 Cal.App.4th 614, overruled on other grounds in Colmenares v. Braimar Country Club. Inc. (2003) 29 Cal. 4th 1019; CRC Rule 317(d). Second, a motion for relief from such default under CCP § 473(b) (attorney fault) is likely to be denied. The mandatory relief portion of section 473(b) for attorney fault applies only where a default or default judgment has been entered; it does not apply to an order granting an unopposed motion for summary judgment. Prieto v. Loyola Marymount University, supra, 132 Cal.App. 4th 290. If the Court exercises its discretion to consider a late filed opposition, the Court may also continue the hearing date to permit the moving party sufficient time to file a reply.

If the requirements of section 437c(h) have been satisfied and a continuance granted, it is incumbent on the moving party to comply and not “stonewall” the additional discovery served. The court has discretion to either deny a summary judgment/adjudication motion or grant a further continuance if the Court finds that the party filing the motion has unreasonably failed to allow the discovery to go forward during the initial period of the continuance. CCP § 437c(i).

Oral Argument: It is generally accepted that parties have a right to present oral argument in a summary judgment/adjudication motion. Nevertheless, the Court retains discretion to limit such argument both on its length and in its scope. Mediterranean Const. Co. v. State Farm Fire and Casualty Co. (1998) 66 Cal.App.4th 257, 259. Any right to oral argument will be deemed waived by the failure to comply with court rules regarding tentative rulings and time for requesting a hearing. See Brannon v. Superior Court (2004) 114 Cal.App.4th 1203.

CRC Rule 324(a)(1) provides for the posting of a tentative ruling by 3:00 p.m. the court day prior to the hearing. Rule 324(a) further provides that if a party desires oral argument, such party shall notify the court and opposing party no later than 4:00 p.m. the court day prior to the hearing. The rule further provides as follows: “If the court has not directed argument, oral argument shall be permitted only if a party notifies all other parties and the court by 4:00 p.m. on the court day prior to the hearing of the party’s intention to appear."

Failure to request argument within the time and in the manner required by CRC 324(a) is deemed to be a waiver. “A court has broad discretion to determine that a party waived the right to oral argument by failing to timely and properly invoke the procedure.” Brannon v. Superior Court, supra, 114 Cal.App.4th 1203 at 1211.

Local Rule 3.04(B) provides that the tentative ruling becomes the ruling of the Court if oral argument is not timely requested.

For suggestions on improving one’s oral advocacy skills, see my column entitled “Ten Tips for Presenting Oral Argument” in the March-April 2005 issue of the Sacramento Lawyer. The article can be read on the County Bar’s web site by using this URL: http://www.sacbar.org/members/saclawyer/mar_apr2005/law_motion.html.

Reconsideration: As I wrote in one of my summary judgment rulings, “Summary judgment practice, like competitive golf, does not recognize a mulligan.” Thus, it is not proper to file a renewed motion that fixes the defects noted by the Court in the prior motion (e.g., failure to submit a separate statement that complies with Rule 342). Pursuant to CCP §437c(f)(2) a party may not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the Court, unless that party establishes to the satisfaction of the Court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion. See Bagley v. TRW, Inc. (1999) 73 Cal.App.4th 1092. Indeed, an appellate court has ruled that a trial court abuses its discretion when it reconsiders a ruling on a summary judgment motion without finding the existence of newly discovered facts or circumstances or a change in the law. Schachter v. Citigroup, Inc. (2005) 126 Cal.App.4th 726.

This installment completes the series of columns dealing with summary judgment practice. Hopefully, they have been of some aid to the civil practitioner in drafting or opposing summary judgment motions.

July / August 2006