2011-00111351-CU-AS
Edna Peoples vs. Metropolitan Life Insurance Company
Nature of Proceeding:
Filed By:
Motion for Summary Judgment and/or Adjudication (J.T. Thorpe & Son,
Loh, Alice K.

Defendant J.T. Thorpe & Son, Inc.’s motion for summary judgment, or in the
alternative, summary adjudication, is continued to May 23, 2014, at 2 pm in this
department pursuant to CCP § 437c(h).

In this asbestos lawsuit, Plaintiffs allege causes of action for negligence, breach of
implied warranty, strict product liability, false representation, fraud and conspiracy, and
premises liability. They also seek punitive damages. They claim that the Decedent
(Archie Peoples) was exposed to asbestos while working with asbestos-containing
products at worksites including the Pollock Shipyard in Stockton and the Food
Machinery Corporation in San Jose. Defendant moves for summary judgment, or in the alternative summary adjudication,
on multiple grounds, primarily on the grounds that Plaintiffs have no evidence to show
that the Decedent was exposed to asbestos by Defendant. Defendant relies on the
fact that Plaintiffs provided no specific facts in their discovery responses to support
their contentions that Defendant exposed the Decedent to asbestos and testified in
their depositions that they had never heard of Defendant, did not associate Defendant
with any product or service, did not know whether the Decedent worked with any of
Defendant’s employees or its products, and did not know whether or any product that
was removed or installed by Defendant.

In their opposition, Plaintiffs seek a 45 day continuance pursuant to CCP § 437c(h) in
order to depose Defendant’s PMK and custodian of records. The deposition was
originally set for March 25, but Defendant objected to the deposition on, among other
grounds, that the deposition notice did not provide adequate time for Defendant to
identify a PMK. Plaintiffs re-noticed the deposition for April 9, 2014, though it appears
the parties may need to meet and confer on the date and it make take place at a later
time. Plaintiffs seek a 45 day continuance.

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 ” ‘upon a good faith showing by affidavit that a continuance
is needed to obtain facts essential to justify opposition to the motion.’ [Citation.]” (
Aguimatang v. California State Lottery (1991) 234 Cal. App. 3d 769, 803-804.) That is,
Code of Civil Procedure section 437c, subdivision (h) declares: “If it appears from the
affidavits submitted in opposition to a motion for summary judgment . . . that facts
essential to justify opposition may exist but cannot, for reasons stated, then be
presented, the court shall . . . order a continuance to permit affidavits to be obtained or
discovery to be had or may make any other order as may be just.” (Italics added.) 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). (Mary Morgan,
Inc. v. Melzark (1996) 49 Cal. App. 4th 765, 770-771.)

As noted, a request for a continuance must be accompanied by affidavits showing that
facts justifying an opposition may exist but cannot then be presented. (CCP § 437c
(h).) The affiant need not show evidence does exist, only that it may. This “leaves
little room for doubt that such continuances are to be liberally granted.” (Frazee v.
Seely (2002) 95 Cal.App.4th 627, 634 [quoting Bahl v. Bank of America (2001) 89
Cal.App.4th 389, 395.) CCP § 437c(h) “mandates a continuance of a summary
judgment hearing upon a good faith showing by affidavit that a continuance is needed
to obtain facts essential to justify opposition to the motion.” (Nazar v. Rodeffer (1986)
184 Cal.App.3d 546, 556.) Further, even where the requirements of Code of Civil
Procedure section 437c(h) have not been met, a continuance is within the Court’s
discretion so long as good cause is shown. (Lerma v. County of Orange (2004) 120
Cal.App.4th 709, 716.)

A continuance pursuant to CCP § 437c(h) is mandated in these circumstances.
Plaintiff’s counsel’s declaration shows that facts justifying an opposition may exist but
cannot yet be presented. (Jahn Decl.) Indeed, the instant motion is premised on the
argument that Plaintiffs have no evidence that Defendant exposed the Decedent to asbestos. Plaintiffs are in the process of obtaining a date to depose Defendant’s PMK
and custodian of records to seek information regarding Defendant’s supply of asbestos
-containing products to Decedent’s worksite. (Jhan Decl. ¶ 3.) Such information would
be crucial to opposing the instant motion given that “[i]n the context of a cause of
action for asbestos-related latent injuries, the plaintiff must first establish some
threshold exposure to the defendant’s asbestos-containing products…” (Rutherford v.
Owens-Corning, Inc. (1997) 16 Cal.4th 953, 983.) While Defendant argues that such a
showing has not been made, and that Plaintiff has not been diligent in seeking the
requested discovery, as set forth above, continuances under this section are to be
liberally granted. Further, while Defendant argues that Plaintiff at most only addresses
the reasons for continuing the motion with respect to the first cause of action for strict
products liability, and that the Court should proceed to grant summary adjudication as
to the remaining causes of action, the Court will not do so. Indeed, Plaintiff’s request
for a continuance is not as limited as Defendant suggests. Plaintiff seeks discovery
related to Defendant’s supply of asbestos-containing products to Decedent’s worksite
which could relate to more than simply the first cause of action for strict products
liability. A continuance of the entire motion is the most appropriate resolution.
As a result, Plaintiffs have satisfied the requirements for a continuance pursuant to
CCP § 437c(h). Plaintiffs’ opposition papers and Defendant’s reply papers shall be
filed and served based upon the new May 23, 2014, hearing date.

The Court is aware that the new hearing date is less than thirty days from the June 2,
2014, trial date. However, given the above, and Plaintiffs’ offer to waive the thirty day
requirement, the Court finds good cause to hear the motion less than thirty days before
trial.

The notice of motion does not provide notice of the Court’s tentative ruling system as
required by Local Rule 1.06(D). Defendant’s counsel is ordered to notify Plaintiffs’
counsel immediately of the tentative ruling system and to be available at the hearing,
in person or by telephone, in the event Plaintiffs’ counsel appears without following the
procedures set forth in Local Rule 1.06(B).

This minute order is effectively immediately. No formal order pursuant to CRC rule
3.1312 or other notice is required.