Plaintiff Baza’s request pursuant to Code Civ. Proc. § 437c(h) that the hearing on Defendant Target Corporation’s motion for summary judgment or adjudication be continued to allow Plaintiff to conduct certain discovery is granted. Defendant’s motions shall be heard on 6/2/14.

Code Civ. Proc. § 437c(h) provides that if facts essential to justify opposition may exist but cannot then be presented, the court “shall” deny the motion or continue the hearing to permit affidavits to be obtained or discovery to be had. Here, Plaintiff has requested that the court deny or continue the motion.

A party opposing a motion for summary adjudication may request a continuance in the opposition papers with a supporting declaration showing facts to justify opposition may exist. Code Civ. Proc. §437(h). If the opposing party shows that essential evidence may exist – it need not show it does exist – but cannot for the reasons stated be presented at the time, then a continuance or denial of the motion is virtually mandated. Weil & Brown, Cal. Prac. Guide, Civil Proc. before Trial (Rutter 2012) § 10:207 -207.20 and cases cited there.

There is a conflict among the courts of appeal whether lack of diligence is a ground for denial of continuance under Code Civ. Proc. § 437c(h). Certainly, where as a result of lack of diligence the responding party’s counsel cannot provide the declaration required under section 437c(h), the requested continuance may be denied. Bahl v. Bank of America (2001) 89 Cal. App. 4th 389, 398. Where counsel has provided the requisite declaration, however, some courts of appeal disagree and have found that the lack of diligence in attempting to obtain the needed evidence is not ground for denial of continuance under section 437c(h). See, e.g., Id.; Park v. First American Title Co. (2011) 201 Cal. App. 4th 1419, 1428.

Moreover, even where the responding party does not meet the requirements of section 437(h), the court still has discretion to grant a continuance. Weil & Brown, Cal. Prac. Guide, Civil Proc. before Trial at § 10:208-208.1. Where a continuance is not mandatory under section 437(h), the court must nevertheless determine whether the party requesting the continuance has established good cause for a continuance. Lerma v. County of Orange (2004) 120 Cal. App. 4th 709, 716. The court’s discretion is to be exercised liberally, considering the following factors: length of time the case has been pending, time the requesting party had to oppose the motion, the proximity to the trial date, whether the continuance of the motion could have been made earlier, whether there were prior continuances for the same purpose. Weil & Brown, Cal. Prac. Guide, Civil Proc. before Trial, § 10:208 -208.1 and cases cited there.

Here, Plaintiff has met the requirements of section 437c(h). Plaintiff has shown that he seeks Maria Aguirre’s deposition to test whether she reported his undocumented status when Target says she did and to support his testimony and contention that she previously reported that fact but Target did nothing about it until after Plaintiff was injured and went on leave. Plaintiff further seeks evidence whether other Target employees are known to be undocumented.

Target points to a lack of diligence by Plaintiff and Plaintiff points to Target as the reason Plaintiff does not have the information he needs to oppose Target’s MSJ. Target also argues that Plaintiff’s counsel’s declaration does not meet the requirements of section 437c(h). But read as a whole, counsel’s declaration shows a good faith need at least for the deposition, and information necessary to obtain the deposition, of Maria Aguirre in order to test the truth of Target’s stated reason for terminating Plaintiff – that is, that in April 2012 it received a report that Plaintiff was undocumented and not authorized to work in the United States. Plaintiff has also essentially shown why he does not have the information now. And while counsel does not provide an express estimate of the time necessary to obtain the evidence, she has noted when Plaintiff’s motions to compel are set to be heard.

Trial of this matter will be continued to 9/15/14, 9:00 am. The Pre-Trial Conference is 9/12/14, 1:30 pm. The MSC is 8/22/14, 9:00 am. The discovery cut off and other dates attendant on the trial date are correspondingly continued.

Moving party to give notice.