Judge: Laura A. Seigle, Case: 20STCV17825, Date: 2023-02-28 Tentative Ruling

Case Number: 20STCV17825    Hearing Date: February 28, 2023    Dept: 15

[TENTATIVE] ORDER RE REQUEST TO CONTINUE HEARING

            The hearing on Defendant Whittaker, Clark & Daniels, Inc.’s motion for summary judgment was set for February 9, 2023.  On February 8, 2023, Plaintiffs filed an ex part application to continue the hearing pursuant to Code of Civil Procedure section 437c, subdivision (h), stating Plaintiffs had just discovered that Defendant had sold talc to Avon.  Because such a request must be made “at any time on or before the date the opposition response to the motion is due” (Code Civ. Proc., § 437c, subd. (h)), the court denied the request as untimely.  At the February 9, 2023 hearing, Plaintiffs again requested the hearing be continued.  Defendant objected that Plaintiffs had not previously alleged sales to Avon as a basis for Defendant’s liability.  The court requested additional briefing on the procedural issue of a request for a continuance of a summary judgment hearing based on new allegations against the defendant.

            “It is well-settled that the pleadings set the boundaries of the issues to be resolved at summary judgment.  [Citations.]  ‘Thus, a “defendant moving for summary judgment need address only the issues raised by the complaint; the plaintiff cannot bring up new, unpleaded issues in his or her opposing papers.”  [Citation.]  “To create a triable issue of material fact, the opposition evidence must be directed to issues raised by the pleadings.  [Citation.]  If the opposing party’s evidence would show some factual assertion, legal theory, defense or claim not yet pleaded, that party should seek leave to amend the pleadings before the hearing on the summary judgment motion.  [Citations.]”  [Citations.]’ ”  (Vulk v. State Farm General Insurance Co. (2021) 69 Cal.App.5th 243, 255.)  A request to amend the pleadings can be made as late as prior to entry of judgment.  (Kirby v. Albert D. Seeno Construction Co. (1992) 11 Cal.App.4th 1059, 1069 n.7.)

            In the February 8, 2023 ex parte application, Plaintiffs made the request to continue the February 9, 2023 hearing on the motion for summary judgment in order to pursue new claims against Defendant.  This request is akin to requesting leave to amend the pleadings to raise a new claim.  The allegations in the Seconded Amended Complaint are so generic that they encompass Plaintiffs’ new theory of liability based on Defendant’s sale of talc to Avon.  A Third Amended Complaint, which would require all of the remaining defendants to file new answers, is not necessary.  But Plaintiffs’ discovery responses have not detailed Plaintiffs’ new theory.  Therefore, Plaintiffs would need to serve amended discovery responses setting forth the facts, witnesses, and evidence supporting the new theory.

            Because trial is not until August 28, 2023, there is sufficient time for Plaintiffs to serve amended discovery responses and for the parties to file supplemental summary judgment papers.  Defendant will not be prejudiced by continuing the summary judgment hearing, apart from having to file supplemental summary judgment papers.

            The request to continue the hearing on the motion for summary judgment is GRANTED.  The hearing is continued to July 28, 2023 at 9 a.m.  By March 28, 2023, Plaintiffs are to serve amended discovery responses to all of Defendant’s discovery requests asking for facts, evidence, witnesses, and documents supporting Plaintiffs’ claims against Defendant.  The parties may file supplemental summary judgment papers on statutory notice.

            The moving party is to give notice.