Civil Litigation Legal Topics Litigation Strategy Pretrial Matters

Need More Time to Oppose a Summary Judgment Motion?

Once you receive a summary judgment motion filed against your client, you have about two months to file and serve your opposition papers. That sounds like plenty of time, but it may not be sufficient to marshal the evidence you need to oppose the motion. That’s when you need a continuance.

If you need more time to oppose the motion, you can ask counsel for the moving party to voluntarily continue the date for the hearing on the motion. If time doesn’t remain to continue the hearing to a date at least 30 days in advance of trial, courts will sometimes allow the parties to stipulate to a continuance of the trial date for time sufficient to properly reschedule the summary judgment hearing.

If the moving party won’t agree, you can make an ex parte motion for a continuance at any time on or before the date the opposition papers are due (i.e., at least 14 days before the date set for hearing) under CCP §437c(h). Best practice is to make the request for a continuance as soon as possible. The court may not be inclined to grant the request if it appears that the opposing party has been dilatory in preparing its papers and evidence.

When seeking a continuance from the court, you need to make a showing by declaration that evidence essential to the motion may exist but can’t be presented in time for the hearing. CCP §437c(h).

  • A continuance is mandatory when you can show (a) the facts to be obtained are essential to opposing the motion, (b) there is reason to believe such facts may exist, and (c) the reasons additional time is needed to obtain these facts. Johnson v Alameda County Med. Ctr. (2012) 205 CA4th 521, 531.
  • A continuance is discretionary on a showing of good cause. Hamilton v Orange County Sheriff’s Dep’t (2017) 8 CA5th 759, 765.

As soon as you receive a summary judgment motion, always evaluate whether you’ll need additional evidence to prepare the opposition. Two months are usually enough to set depositions and serve written discovery. But if, after exercising diligence early in the notice period, it appears that there are additional essential facts that exist but which can’t yet be produced, request a continuance as soon as reasonably practical. There’s rarely strategic advantage in seeking a continuance merely for the sake of delay itself.

For guidance through the timing requirements and planning strategies, turn to CEB’s California Summary Judgment, chap 3. Get an overview of the summary judgment process, including tips for organizing discovery and evidence, in CEB’s program The Basics 2018: Summary Judgment, available On Demand.

Other CEBblog™ articles you may find helpful:

© The Regents of the University of California, 2019. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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