A Party Seeking a Continuance to Oppose a Motion for Summary Judgment Must Act in Good Faith and With Diligence or the Request Will Likely Be Denied

Haight Brown & Bonesteel LLP


In Braganza v. Albertson’s (July 29, 2021, WL 3204494), the Fourth District Court of Appeal, Division Two, held that a party seeking a continuance of a hearing on a motion for summary judgment must act in good faith and with diligence. Failing to do so may result in the trial court denying this request and granting summary judgment.

Plaintiff Lisa Braganza sued Albertson’s grocery store for personal injuries stemming from premises liability and negligence as a result of slipping and falling due to spilled water on the floor while a customer at the store. Albertson’s moved for summary judgment pursuant to California Code of Civil Procedure §437c on the grounds that (1) the floor in the area of the fall was not unsafe as Plaintiff claimed during discovery; (2) even if wet, the floor was not unsafe due to a coefficient of friction test performed by Albertson’s expert; and (3) Albertson’s had neither actual nor constructive notice that the floor was wet.


The hearing date was set for March 6, 2019. One day before Plaintiff’s opposition was due she sought a continuance of the hearing date for 45 days to conduct discovery by way of her attorney’s declaration. She did not oppose the motion. Instead, she sought to have her own expert inspect the premises, conduct testing on the flooring, and then author a declaration to create a triable issue of fact.

The continuance was sought by way of §437c(h), which allows for a continuance when facts exist to oppose the motion but cannot timely be obtained to defeat the motion. Plaintiff contended that the statute was mandatory and contained no explicit or implicit requirement of good faith or diligence. The trial court disagreed, denied the request for a continuance, and granted Albertson’s motion due to its lack of actual or constructive knowledge of the water on the floor. The trial court ruled that the continuance was not required because the sought after discovery could have and should have been undertaken earlier, and Plaintiff failed to act with diligence in obtaining the needed discovery. The appeal followed.


The standard of review is abuse of discretion. Plaintiff contends that the trial court abused its discretion in failing to allow for the continuance based on the lack of diligence.

Continuances under §437c(h) are to be liberally granted; and although the subdivision (h) does not contain these specific terms, there must be good reason to deny such a request; and the interests of justice stress the importance of cases being decided on their merits rather than on procedural deficiencies. (Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 395; Dee v. Vintage Petroleum, Inc. (2003) 106 Cal.App.4th 30, 34-35.) There is no specific language imposing good faith in subdivision (h), but the Bahl court held that there must be a showing of good faith by way of affidavit. (See also Johnson v. Alameda County Medical Center (2012) 205 Cal.App.4th 521, 532.)

A split of authority is also noted in Cooksey v. Alexakis (2004) 123 Cal.App.4th 246 (Second Court of Appeal, Division Five), noting a split of opinion among California appellate courts. The First, Second, and Sixth Appellate Districts had upheld denials of continuance requests, at least partly on the ground that the party seeking the continuance had had adequate time to complete the discovery; however, the Bahl and Frazee courts (Frazee v. Seely (2002) 95 Cal.App.4th 627) at least suggest that diligence is irrelevant. Cooksey ultimately sided with the requirement that diligence and good faith are obligated within the statute and must be explained in any request for continuance. Furthermore, subdivision (j) authorizes the imposition of sanctions for declarations presented in bad faith or solely for purposes of delay.


The plain language of subdivision (h) authorizes a continuance of the hearing so that essential facts may be obtained to oppose the motion, but there is more to it than what is simply set forth in subdivision (h). The party opposing summary judgment should submit evidence to the court establishing diligence and the specific reasons that the evidence needed to oppose the motion could not have been obtained in time to oppose the motion. Unexplained delay is likely to result in the request being denied and the motion being granted.

Written by:

Haight Brown & Bonesteel LLP

Haight Brown & Bonesteel LLP on:

Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide
- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.