Judge Ralph C. Hofer, Case Number: 20STCV34960, Date: 2023-11-03 Tentative Ruling

Plaintiff David Desoto alleges that from approximately 1980 to 1994 plaintiff was employed at the facilities of Lockheed Corporation and its various affiliates (Lockheed), a manufacturer, supplier and seller of defense weaponry and related products.

Plaintiff alleges that defendants Union Oil Co. of California dba Unocal, E.I. Dupont de Nemours & Company, Exxon Corp., Exxon Mobil Corporation, Shell Oil Company, Ashland, Inc., and Ashland Chemical Co. were at all relevant times engaged in the business of formulating, manufacturing, supplying distributing and selling chemical substances for purchase and use by businesses of the type for which plaintiff was employed. The operative complaint, the Second Amended Complaint, alleges that the chemical substances were defective, hazardous, and unsafe for their intended purposes without serious, immediate and cumulative injury to persons using the chemical substances. Plaintiff alleges that the chemical substances were toxic and poisonous, separately and in combination, and were defective in design, and that during the use of plaintiff’s employment plaintiff was subjected to contact with the chemical substances, and inhalation of the gases, fumes and vapors of the chemical substances.

Plaintiff alleges that as a proximate result of the defect and exposure of plaintiff to the toxic chemical substances, plaintiff was injured, contracting bronchiolitis obliterans, along with other related health conditions and respiratory impairments, which has led to the deterioration of plaintiff’s overall health, affecting his day-to-day life.

Plaintiff in opposition requests a continuance of the hearing, arguing that the motion is brought prior to the court ordered causation expert disclosure deadline and the case management order schedule for commencement of expert discovery.

“If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just….”

Since the amendment of the summary judgment timelines in 2003, the courts have imposed good faith/diligence requirement on parties seeking continuances. The Second District in Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, set forth the required elements of an affidavit in support of a request for continuance, holding that

It is recognized that where an appropriate declaration meeting these requirements is submitted, then denial of the motion or grant of the continuance is mandatory. Dee v. Vintage Petroleum, Inc. (2003) 106 Cal.App.4th 30, 34-35. Where the declaration is not timely submitted, or fails to make the required showing, then whether to grant a continuance is a matter within the trial court’s discretion, and the trial court’s ruling will be reviewed for abuse of discretion. Cooksey, at 254. See also, Jade Fashion & Co., Inc. v. Harkham Industries, Inc. (2014, 2nd Dist.) 229 Cal.App.4th 635, 655; Menges v. Department of Transportation (2020) 59 Cal.App. 5th 13, 25-26.

“‘[A] summary judgment is a drastic measure which deprives the losing party of trial on the merits.' ” (Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 395 [107 Cal.Rptr.2d 270].) “To mitigate summary judgment's harshness, the statute's drafters included a provision making continuances-which are normally a matter within the broad discretion of trial courts-virtually mandated ....” (Ibid.; Code Civ. Proc., § 437c, subd. (h).) Where the opposing party submits an adequate affidavit showing that essential facts may exist but cannot be presented timely, the court must either deny summary judgment or grant a continuance. (Frazee v. Seely (2002) 95 Cal.App.4th 627, 633 [115 Cal.Rptr.2d 780].)

Here, the declaration was timely filed, and indicates that there is good reason to believe that facts relating to plaintiff’s exposure to DuPont’s product exist even if plaintiff could not confirm such during his deposition. The attorney indicates it is not uncommon for plaintiffs in toxic tort cases to have difficulty recalling the particular products they used during deposition and this failure is not necessarily fatal to their cases, but that there are other ways of proving plaintiff was exposed, including expert testimony. [Finnerty Decl., para. 2]. The declaration also states that more time is required to fully investigate these facts pursuant to the court’s Case Management Order, which ordered expert discovery to commence next year. [Finnerty Decl., para. 2].

The declaration is not ideal, as it does not directly indicate what facts are essential to justify opposition to the motion, or why these facts cannot now be presented, in effect, why additional time is needed to obtain these facts, or a showing of diligence. It can be reasonably inferred that the essential facts would include evidence that plaintiff during the course of his employment at Lockheed handled specific chemicals which were manufactured or supplied by the moving defendant DuPont, which facts and connection would not necessarily have been within the personal knowledge of plaintiff at his deposition. However, a showing for a continuance would ordinarily explain what specific further discovery is necessary to obtain those facts, such as that requests for production of documents are pending, or a deposition of a witness with knowledge needs to be taken, which is not done here.

The court is familiar with this case and has been apprised of the difficulties presented by the fact that documents in connection with the period of plaintiff’s employment at Lockheed are very old. It is not clear from the declaration, however, what steps have been taken by plaintiff to demonstrate diligence with respect to discovering the facts to connect moving defendant to plaintiff’s injuries.

With respect to the Case Management Order in this case, the file shows that on March 30, 2022, the court signed and filed a stipulation, Joint Case Management Order and Request for Trial Continuance, which set the trial for July 10, 2023, and indicated that non-expert discovery was to be completed 90 days before trial, with the simultaneous disclosures of causation experts to occur on or before January 10, 2023, with schedules set for deposing those experts, and for production of certain documents in advance of the depositions.

On October 27, 2022, a new Stipulation and Order Regarding Continuance of Trial and Related Deadlines was signed and filed, continuing the trial date to November 13, 2023, continuing the deadline to disclose causation experts to May 10, 2023, and continuing all related deadlines to the new trial date.

On May 11, 2023, the court signed and filed a third Order re: Parties’ Stipulation to Continue Trial and Related Deadlines, continuing the trial date to August 12, 2024, continuing the deadline to disclose causation experts to February 8, 2024, and continuing all other trial related deadlines relative to the trial date ordered.

This order is the one plaintiff relies on in arguing that expert discovery is not scheduled to commence until next year. The CMO and various continuances does indicate that expert discovery will commence in February of 2024 and follow a particular schedule.

Plaintiff relies on Hamilton v. Orange County Sheriff’s Dept. (2017) 8 Cal.App. 5th 759, in which the court of appeal denied a request for continuance on the ground a stipulation submitted to the court sixteen days before the summary judgment hearing to continue the hearing so that plaintiff could complete discovery did not include a showing of diligence. The court of appeal found that under the circumstances of the case, the trial court had abused its discretion. The court of appeal observed:

“In seeking a continuance of a summary judgment motion, a plaintiff has essentially two options. The first option is to comply with section 437c, subdivision (h), which states, “If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due.” “The drafters' inclusion of the italicized words ‘may’ and ‘shall’ leaves little room for doubt that such continuances are to be liberally granted. Indeed, as one court noted, ‘an opposing party can compel a continuance of a summary judgment motion’ by making a declaration meeting the requirements of section 437c, subdivision (h).” (Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 395–96, 107 Cal.Rptr.2d 270).

Where a plaintiff cannot make the showing required under section 437c, subdivision (h), a plaintiff may seek a continuance under the ordinary discretionary standard applied to requests for a continuance. (Mahoney v. Southland Mental Health Associates Medical Group (1990) 223 Cal.App.3d 167, 170, 272 Cal.Rptr. 602.) This requires a showing of good cause. (Id. at pp. 170–171, 272 Cal.Rptr. 602.) “[I]n deciding whether to continue a summary judgment to permit additional discovery courts consider various factors, including (1) how long the case has been pending; (2) how long the requesting party had to oppose the motion; (3) whether the continuance motion could have been made earlier; (4) the proximity of the trial date or the 30-day discovery cutoff before trial; (5) any prior continuances for the same reason; and (6) the question whether the evidence sought is truly essential to the motion.” (Chavez v. 24 Hour Fitness USA, Inc. (2015) 238 Cal.App.4th 632, 644, 189 Cal.Rptr.3d 449 (Chavez).)

Even the cases cited in the reply recognize that even where an affidavit in support of a continuance is deficient, the trial court retains discretion to grant a continuance. See Johnson v. Alameda County Medical Center (2012) 205 Cal.App.4th 521, 533 (“The trial court was, nevertheless, free to grant a continuance under its broad discretionary power.” (citing Lerma v. County of Orange (2004) 120 Cal. App. 4th 709, 716 (“When a continuance of a summary judgment motion is not mandatory, because of a failure to meet the requirements of Code of Civil Procedure section 437c, subdivision (h), the court must determine whether the party requesting the continuance has nonetheless established good cause therefor. That determination is within the court's discretion.”)).

Considering the good cause factors here, the case has been pending since September 11, 2020, but as discussed above, has been subject to delays recognized as reasonable by both parties due to the timeframe of the alleged exposure. The trial date is now scheduled for August 12, 2024, with discovery to be cut off ninety days in advance, in mid-May of 2024, so there remains plenty of time for the parties to prepare for trial if a 60-day continuance is permitted. There have been no prior continuances for the same reason. With respect to whether the evidence sought is truly essential to the motion, it would appear that since the motion is based on plaintiff’s failure to respond at deposition with evidence concerning the substances to which he was exposed, and his purported inability to obtain evidence to support the essential element of his claims that moving defendant’s product was one to which he was exposed, the evidence at issue would be considered essential.

Defendant in reply argues in a footnote that expert discovery and evidence would not be sufficient to defeat the motion without plaintiff obtaining underlying evidence of the chemicals involved upon which an expert could base opinions concerning DuPont’s liability. The court recognizes that plaintiff’s reliance on the prematurity of conducting expert evidence is incomplete, and that plaintiff is free to submit appropriate expert evidence in response to the motion regardless of any CMO deadlines.

However, given the above factors, and particularly given the apparent reliance on the specially tailored Case Management Order in this matter, and the harshness of granting a dispositive motion for summary judgment or adjudication, the court finds that good cause exists to continue the hearing in this matter for a maximum period of sixty days, and the court will exercise its discretion to permit plaintiff to conduct further discovery into facts which would justify opposition to the motion.

If plaintiff requires any expert discovery in advance of the dates now provided in the Case Management Order, plaintiff may apply ex parte to the court for permission to conduct such discovery but must specifically demonstrate that any such discovery is essential to obtain facts necessary to oppose the motion.

Pursuant to the request of plaintiff in the opposition papers, the Court has considered the circumstances with respect to this action and this motion, particularly the lack of immediate proximity of the trial date and the discovery cut off deadlines, the lack of any prior continuances for the same reason, the reasonable conclusion the evidence connecting moving defendant to plaintiff’s allege workplace exposure is truly essential to opposing the motion, plaintiff’s reliance on the case specific Case Management Order entered in this action, and the dispositive nature of the summary judgment or summary adjudication remedy. The Court finds that sufficient good cause has been established to continue the hearing on this motion for no longer than 60 days.

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