Judge: Christopher K. Lui, Case: 22STCV08963, Date: 2024-01-11 Tentative Ruling

Case Number: 22STCV08963    Hearing Date: January 11, 2024    Dept: 76

The Court has reviewed and considered the ex parte application of Plaintiff John Roe, and the opposition papers filed by Defendant Big Brothers Big Sisters of America.  The Court finds the matter to be appropriate for decision in chambers without argument.

Code of Civil Procedure section 437c(h) provides that requests to continue a hearing for further discovery “shall” be granted if facts essential to justify opposition may exist but cannot, for reasons stated, be presented.  As noted by the Court of Appeal, requests for continuances should be liberally granted.  (Braganza v. Albertson’s LLC (2021) 67 Cal.App.5th 144, 152-53.)  However, Braganza noted the split of opinion among Courts of Appeal regarding the role of diligence (or lack thereof) in pursuing discovery when ruling on section 437c(h) continuance requests.  (Id. at 155.)  Among the cases noted by Braganza was Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, in which the Court of Appeal for the Second District held that the lack of diligence may be a basis for denying a continuance.  This Court finds Cooksey to be the most persuasive among the divergent authorities and will apply its rule to this case.  The chronology of discovery communications recounted by Defendant shows that in the exercise of diligence, the requested discovery could have been obtained sooner.  The Court considers it to be very significant that the hearing on Defendant’s motion for summary judgment was already continued once to allow additional time for the preparation of an opposition, yet the record does not establish diligent effort to finalize any discovery desired to prepare an opposition.

The ex parte application is DENIED.