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Broad Statement That Pandemic Preluded Depositions Did Not Mandate Delay—C.A.
Opinion Says Continuance of Hearing on Summary Judgment Motion Was Not Required Where Attorney Did Not Provide Specifics
By a MetNews Staff Writer
The First District Court of Appeal determined yesterday that a summary judgment was properly awarded to the defendant in an employment discrimination/employment action, rejecting the plaintiff/appellant’s contention that it was an error to deny a continuance based on an attorney’s declaration that depositions were necessary which had not been scheduled earlier in light of the pandemic.
Rather than filing opposition on the merits to the motion for summary judgment filed by defendant Walsh Construction Company II, LLC, plaintiff Ignacio Castillo’s attorney filed a motion pursuant to Code of Civil Procedure §437c(h) which says:
“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, be presented, the court shall deny the motion, 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 also be made by ex parte motion at any time on or before the date the opposition response to the motion is due.”
Lawyer’s Declaration
The attorney declared that depositions “are necessary to discover the information to justify Plaintiff’s opposition to the Motion,” explaining:
“Due to continued [e]ffects of the COVID-19 pandemic, my office could not schedule these depositions any earlier than 2022.”
Acting Presiding Justice Mark B. Simons wrote, in yesterday’s unpublished opinion:
“Appellant clearly failed to make the showing required for a mandatory continuance under section 437c(h).”
Such a motion, he said, requires a particularization of the grounds.
Need Not Evident
“Notably, this is not a case where the importance of the witnesses appellant sought to depose was self-evident,” he said, pointing out that the motion failed to specify what information would be sought from the two persons the plaintiff wished to depose.
“The trial court was not obligated to guess what information appellant wanted from the witnesses, and the court had no basis to assume that those witnesses were the only source of evidence that appellant provided notice of his alleged disability to respondent.”
The case is Castillo v. Walsh Construction Co., A165149.
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