Continuances of Summary Judgment Motions to Conduct Additional Discovery

Alison K. Adelman, Esq.
Schwartz Semerdjian Cauley & Moot LLP
Published:  03.01.2017

One of the most common yet arduous motions litigators encounter in their practice today is a Motion for Summary Judgment (“MSJ”). The rules for bringing and defending a MSJ are governed by California Code of Civil Procedure 437c. Although the “no triable issue as to any material fact” standard for prevailing on an MSJ is difficult to satisfy, many attorneys feel that opposing a summary judgment motion is more difficult than bringing one. If the party opposing the motion does not yet have all the evidence necessary to defend the case, it may make opposing the MSJ even more difficult. In such situations, a party may have a right to a continuance of the MSJ under certain circumstances.

To mitigate summary judgment’s harshness, California Code of Civil Procedure section 437c’s drafters “included a provision making continuances – which are normally a matter within the broad discretion of the trial courts – virtually mandated ‘upon a good faith showing by affidavit that a continuance is needed to obtain facts essential to justify opposition to the motion.’” Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 395.

California Code of Civil Procedure Section 437c(h)

Subsection (h) of California Code of Civil Procedure section 437c permits the party opposing a MSJ, if required showings are made, to obtain a continuance of the hearing date to conduct additional discovery. The court also has the discretion to deny the MSJ in its entirety on the same basis. “If it appears from the affidavits submitted in opposition to a motion for summary judgment or a summary adjudication, or both, that the 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.” Code Civ. Proc. § 437c(h).

Timing and Procedure of MSJ Discovery Continuances

Section 437c(h) gives parties two options to request a continuance of a MSJ to conduct further discovery. It is not enough to ask for a continuance at the time of oral argument or in opposing points and authorities. The opposing party must submit an application by way of declarations filed with the opposition that include the necessary showings (explained below). Code Civ. Proc. § 437c(h).

The second option is to submit a motion ex parte at any time on or before the date the opposition to the motion is due. Id.; Ambrose v. Michelin North America, Inc. (2005) 134 Cal.App.4th 1350, 1353. However, to increase the chances of obtaining a continuance, it is wise to make the request, by either method, as soon as possible. If you wait to request the continuance with the opposition, be sure to make very clear on the caption page of your papers that you are requesting a continuance (e.g., include “CONTINUANCE REQUESTED” in bold). Otherwise, the Judge may read the entire opposition before coming across the continuance request and then potentially be reluctant to continue the hearing. See Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2016) ¶ 10:207.6.

Mandatory Continuances

Generally, the court’s power to decide whether a continuance should be granted is discretionary, and there is no right to a continuance as a matter of law. Mahoney v. Southland Mental Health Associates Medical Group (1990) 223 Cal.App.3d 167, 170. Nevertheless, most courts interpret section 437c(h) as an exception to the general rule such that it mandates continuances be granted if the code’s requirements are satisfied. See id.; see also Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 714. Thus, a continuance of a MSJ is “virtually mandated” where the nonmoving party makes the requisite showing. See Bahl, supra, at 395.

Per CCP 437c(h), those seeking a continuance must show that facts essential to justify opposition may exist, but for some reason cannot be currently presented. This means that the opposing party must provide a declaration that shows: (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. Chavez v. 24 Hour Fitness USA, Inc. (2015) 238 Cal.App.4th 632, 643.

The reason for such a significant showing is to avoid unprepared parties from employing the section as a “device to obtain an automatic continuance by . . . simply fil[ing] a declaration stating that unspecified essential facts may exist.” Id. Thus, specific facts must be provided that establish controverting evidence may exist, the specific reasons why the evidence cannot be presented at that time, and an estimate of the time and steps necessary to obtain such evidence. Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2016) ¶ 10:207:15. In granting a continuance, the Bahl v. Bank of America court noted that it was “hard-pressed to imagine evidence more ‘essential to justify opposition’ than that which might undermine the weight or credibility of declarations made in support of a motion for summary judgment.” Bahl, supra, at 396. 

If a party makes these necessary showings, the court is essentially required to grant the continuance.        

Discretionary Continuances

Even if a party does not satisfy the mandatory requirements, a MSJ discovery continuance is still achievable. If the continuance is not mandatory under 437c(h), “the court must determine whether the party requesting the continuance has nonetheless established good cause therefor. That determination is within the court’s discretion.” Lerma, supra, at 715.

The court takes into account certain factors when determining if the requesting party has established good cause for a continuance, including: the length of time the case has been pending, the length of time the requesting party had to oppose the motion, the proximity of the trial date or the discovery cutoff date, prior continuances for the same purpose, whether the evidence sought is essential to the issue to be adjudicated, and death or serious illness of an attorney or party. Hoffman v. Sports Car Club of America (1986) 180 Cal.App.3d 119, 127; Frazee v. Seely (2002) 95 Cal.App.4th 627, 634; Roth v. Rhodes (1994) 25 Cal.App.4th 530, 548; Wiler v. Firestone Tire & Rubber Co. (1979) 95 Cal.App.3d 621, 628; Chavez, supra, at 644; Lerma, supra, at 716. Some courts even consider whether the reason the party has insufficient information to provide the requisite affidavit under CCP 437c(h) is due to its own lack of diligence in discovery. See Bahl, supra, at 398.

Courts must exercise their discretion liberally in favor of granting a continuance. “[T]he interests at stake are too high to sanction the denial of a continuance without good reason.” Frazee, supra, at 634. In Lerma, the court noted the lower court abused its discretion when it ended its continuance analysis after finding the 437c(h) requirements were not satisfied. Lerma, supra, at 716. There, although the party that requested a continuance did not show that facts essential to opposing the motion may have existed, the party’s attorney was seriously ill and his dire medical condition was “plain and good cause for a continuance . . ..” Id.

In Chavez, the declaration submitted to seek a discovery continuance “did not indicate what facts [the witness] might provide, nor why they might be essential,” and thus did not satisfy the 437c(h) requirements. Chavez, supra, at 643. However, the party nonetheless established good cause because it otherwise showed the need for the particular witness’s testimony, the case had been pending for only one year, no prior continuances had been sought, and importantly, the testimony was essential to the opposition. Id. at 643-44.

While it is certainly possible to obtain a continuance even if 437c(h) requirements are not satisfied, mere conclusive statements that additional discovery is necessary are insufficient. Courts have held statements asserting that “discovery is reasonably necessary to determine who, if not the presently named individuals, is responsible . . .” are wholly inadequate. Johnson v. Alameda County Medical Center (2012) 205 Cal.App.4th 521, 532. A declaration that “additional information and testimony” is required to “adequately respond to Defendant’s Motion” is equally unsatisfactory. See Granadino v. Wells Fargo Bank, N.A. (2015) 236 Cal.App.4th 411, 420. Thus before requesting a continuance, if you cannot satisfy the mandatory requirements, make sure you can provide supportive facts that show why good cause for a continuance nonetheless exists.


When Judges face requests for continuances of summary judgment motions, they must juggle potentially conflicting responsibilities. Judges are mandated “to actively assume and maintain control over the pace of litigation. On the other hand, they must abide by the guiding principal of deciding cases on their merits,” and when “the two policies collide head-on, the strong public policy favoring disposition on the merits outweighs the competing policy favoring judicial efficiency.” Chavez, supra, at 644. If you are a litigator and are opposing a MSJ, remember that CCP 437c(h) provides you and your client the right to a continuance for additional discovery provided you can make the necessary showing. If you think crucial evidence exists, do not hesitate to seek a continuance so you can obtain it. The effort will lead to a more detailed and complete opposition, clearly increasing your chance of success.