Requesting a continuance in motions for summary judgment

Problems frequently arise when an opposing party requires a continuance.  If the opposing party demonstrates that essential evidence “may exist but cannot, for reasons stated, then be presented, the court shall deny the motion” or continue it. (Code of Civil Procedure section 437c(h).)  Quite often, an attorney seeking a continuance will submit a simple request for a continuance in his or her opposition, but do nothing about the request until the date of the hearing.  The language in section 437c(h) is strong; the court is under a mandatory duty to deny or continue the motion if such facts may exist.  But the code section requires an explanation or reasons why those facts cannot be then presented.

Code of Civil Procedure section 437c(h) suggests that a request for a continuance may be made in the opposition papers or by ex parte motion before the opposition is due.  (Code of Civil Procedure section 437c(h).) My preference is to ask for a continuance first by an ex parte application as soon as the need arises.  I also recommend that it be done after you have taken some active steps to conduct the additional discovery, such as setting up depositions, etc.  Taking the time to prepare an ex parte application may demonstrate that you really need to obtain additional discovery and the request is not just made in the event you are in danger of losing the motion.  It also stops the court from reviewing the motion until it is ripe.  No judge will want to read all of the papers only to find a request for continuance buried on the last page of a party’s opposition.

The declaration in support of a request for a continuance must set forth what discovery is necessary to properly oppose the motion for summary judgment.  This proposed discovery should be tied into your assertion that certain facts may exist that will result in a denial of the motion.  The declaration should state why the information in the requested discovery is essential to oppose the motion and why additional time is needed.  (Combs v. Skyriver Communications, Inc. (2008) 159 Cal.App.4th 1242, 1270.)

When advising the court as to the specific reasons why the evidence cannot be presented either in the opposition or at the time of the hearing, be sure to include an estimate as to the time necessary to obtain such evidence.  That is one reason why I prefer to have the discovery already scheduled so that a date certain can be presented to the court.  Statements, such as “further discovery is necessary,” are simply not enough to support a continuance.  “It is not sufficient under the statute merely to indicate further discovery or investigation is contemplated.”  (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 548.)  As stated in Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, “A declaration in support of a request for continuance under section 437c, subdivision (h) 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.'”  (Id. at p. 254.)