No MSJ Continuance without Showing of Diligence
Recently, in Braganza v. Albertson’s LLC (July 29, 2021, No. E073073) ___Cal.App.5th___ [2021 Cal. App. LEXIS 620], the 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.
The trial court granted defendant’s motion for summary judgment after denying plaintiff’s request to continue the hearing on the motion in order to allow her time to conduct discovery necessary to oppose the motion. The plaintiff promptly moved for a new trial – this too was denied.
The plaintiff appealed the grant of summary judgment. The Court of Appeal affirmed the judgment.
The Court of Appeal held, a party who seeks a continuance under Code Civ. Proc., § 437c, subd. (h), 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 trial court to grant the continuance. The Court of Appeal found that plaintiff had not made that showing. Plaintiff’s counsel made no attempt to show, in his declaration in support of the continuance request, why the inspection and testing of the floor area by plaintiff’s expert, and the expert’s declaration in opposition to defendant’s motion for summary judgment, could not have been completed before plaintiff’s opposition to defendant’s motion was due. Nor did plaintiff’s counsel explain why he waited until around six weeks after defendant’s motion was filed and served to serve plaintiff’s inspection demand on defendant, which scheduled plaintiff’s expert inspection and testing for six days after the hearing on defendant’s motion.
Accordingly, Court of Appeal held that the trial court did not abuse its discretion in denying plaintiff’s continuance request based solely on her counsel’s failure to show diligence in completing the necessary floor inspection and testing. The trial court also did not abuse its discretion in denying plaintiff’s new trial motion, which was based solely on her unsuccessful claim that the trial court abused its discretion, or erred as a matter of law, in denying her continuance request.