Judge: Elaine W. Mandel, Case: 23SMCV05446, Date: 2025-06-04 Tentative Ruling

Case Number: 23SMCV05446    Hearing Date: June 4, 2025    Dept: P

Tentative Ruling

Locke v. Schwartzman, Case no. 23SMCV05446

Hearing date June 4, 2025

Plaintiff Locke’s Request for Summary Judgment Extension

Plaintiff Locke, in pro per, sues defendant Schwartzman, D.D.S. for medical malpractice, alleging negligence in installing dental bridges and failing to timely diagnose the need for a root canal. Plaintiff has been in pro per since former counsel withdrew October 2024.

Defendant moved for summary judgment 12/20/24. The parties stipulated to continue the hearing from 3/15/25 to 6/4/25 to give plaintiff more time to oppose the motion. See Stip. 1/29/25. Plaintiff requests further continuance, citing health issues and the inability to retain new counsel. Defendant opposes.

To make the requisite good faith showing to support a request for continuance pursuant to Cal. Code Civ. Proc. §437c(h), “an opposing party’s declaration must show (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.” Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 715.

Per plaintiff’s request: (1) she has suffered from worsening health, necessitating retention of new counsel (See Request 2:1-24); (2) she retained an unnamed expert who can support opposition to the MSJ (See Request 3:8-14); and (3) she has medical records to proffer as evidence. See Request 4:2-4. Generally, plaintiff represents she has evidence in opposition to the MSJ but is incapable of presenting it without counsel.

Defendant argues the court cannot consider plaintiff’s request as an unsworn declaration. See Orion Communications, Inc. v. Superior Court (2014) 226 Cal.App.4th 152, 163. “Section 2015.5 permits submission of unsworn declarations provided they are certified by the declarant… subscribed by him or her. ‘Subscribe’ means ‘to sign with one's own hand.’” In re Marriage of Reese & Guy (1999) 73 Cal. App. 4th 1214, holding modified by Laborde v. Aronson (2001) 92 Cal. App. 4th 459. Plaintiff’s request is signed but not under penalty of perjury. Request 4:12.

Plaintiff has had six months to oppose the MSJ. Defendant argues plaintiff received one continuance via stipulation, and another is unwarranted. The previous continuation was via stipulation; the court has not previously granted a continuance. Plaintiff has not specified a requested length of continuance, but, as plaintiff already received a lengthy continuance via stipulation, the court grants one final, 30-day continuance. GRANTED.