(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/insurance coverage case and its proceedings.)
FACTS ESSENTIAL TO JUSTIFY OPPOSITION MAY EXIST BUT CANNOT, FOR REASONS STATED IN THE ACCOMPANYING EXPERT WITNESS DECLARATIONS, NOW BE PRESENTED. DEFENDANT’S MOTION SHOULD THEREFORE BE DENIED OR, ALTERNATIVELY, THE MOTION SHOULD BE CONTINUED TO PERMIT AFFIDAVITS TO BE OBTAINED AND DISCOVERY TO BE HAD.
Code of Civil Procedure section 437c, subdivision (h), provides in pertinent part as follows:
(h) 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 affidavits to be obtained or discovery to be had or make any other order as may be just. 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.
The decisions make it quite clear that this subsection of the statute is designed to guarantee due process and to ensure that the drastic remedy of summary judgment is not resorted to where, for stated reasons, the party opposing the summary resolution of a case has not been able to obtain the discovery and affidavits that would demonstrate the existence of triable issues of fact. See, e.g., Ambrose v. Michelin North America, Inc., 134 Cal.App.4 th 1350, 1353 (2005); Dee v. Vintage Petroleum, Inc., 106 Cal.App.4th 30, 34 (2003); Frazee v. Seely, 95 Cal.App.4th 627, 634 (2000); Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 395 (2001); Vanderbilt v. Superior Court, 105 Cal.App.3d 628, 637 (1980).
The party opposing summary judgment need only show that controverting evidence may exist, offer specific reasons why the evidence cannot be presented at the present time, provide an estimate of the time necessary to obtain the evidence and outline the specific steps the party intends to take to obtain the evidence. See Cooksey v. Alexakis, 123 Cal.App.4th 242, 254 (2004). The accompanying declaration of attorney Michael G. Nutter fully satisfies the foregoing requirements
The application for a continuance may be made ex parte at any time before the opposition is due. See Ambrose v. Michelin North America, supra, 134 Cal.App.4th at p. 1353. Plaintiffs’ counsel applied ex parte for a continuance on Wednesday morning, December 3, 2008, and his moving declaration there also made the necessary showing. (Plaintiffs request that the court take judicial notice of that ex parte application.) Although the court denied that motion on the ground the ex parte procedure cannot be used to obtain a continuance or a new hearing date but only shorten time, the balance of Code of Civil Procedure section 437c, subdivision(h), plainly permits plaintiffs to request this relief in this opposition. (See Part 6 of 11.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.