Tuesday, September 23, 2014

Debtor Fails to Buy More Time

Jade Fashion & Co. v. Harkham Indus., Inc., No. B248432 (D2d7 Sept. 8, 2014)

The trial court in this debt-collection case granted a plaintiff’s summary judgment motion. The defendant opposed both on the merits and under Code of Civil Procedure § 437c(h), which permits a denial or delay of a summary judgment motion when the non-moving party establishes that it needs more discovery. Defendant claimed that it needed to depose plaintiff’s transactional counsel on the underlying debt
to properly oppose the motion. The trial court disagreed and the court of appeal affirms.

There’s a threshold issue regarding the preparation of appellant’s appendix. It apparently “included all of the papers that it filed in opposition to the summary judgment motion, and excluded almost all of the papers filed by” the plaintiff. Obviously, that’s not the proper way to prepare an appendix. But, since the appellant loses anyway, the court decides to reach the merits.

On the
§ 437c(h) issue, a party seeking a continuance is required to provide a declaration setting forth a basis for the trial court to find that facts essential to the opposition may exist. The declaration must demonstrate that the facts to be obtained are essential to the opposition and explain why there is reason to believe they exist and will be obtained in additional discovery. Here, the defendant provided the declaration, but it was insufficient. It did not explain what evidence was to be obtained from the attorney’s deposition. Further, the factual issues raised in the declaration would not have provided a basis to deny the motion. 


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