THOMAS VS HARBOR FREIGHT TOOLS USA, INC.

Trial is currently set for July 24, 2026.

Analysis

“Though often said, it appears necessary to again reiterate that a summary judgment is a drastic measure which deprives the losing party of trial on the merits.” (Bunzel v. American Academy of Orthopaedic Surgeons (1980) 107 Cal.App.3d 165, 169.)

“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.]” (Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 395.) Specifically, Code of Civil Procedure section 437c(h) 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.” (C.C.P. § 437c(h).) “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). [Citation.]” (Bahl, supra, 89 Cal.App.4th at 395-396.)

However, “any request for such a continuance must be submitted on or before the opposition is due.” (Levingston v. Kaiser Foundation Health Plan, Inc. (2018) 26 Cal.App.5th 309, 315.) Here, Plaintiff’s declaration “in support of notice of limited nonopposition to Defendant’s motion for summary judgment” is untimely, as “all papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days...before the hearing.” (C.C.P. § 1005(b).) The hearing on this motion is set for June 8, 2026. Accordingly, Plaintiff should have filed any opposition on or before March 26, 2026. Plaintiff did not file his declaration until June 1, 2026. As such, Plaintiff’s opposing declaration is untimely and does not comply with the requirements for an application for a continuance under section 437c(h).

However, the untimeliness of Plaintiff’s opposing declaration does not deprive the Court of jurisdiction to continue the hearing on a motion for summary judgment. “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. [Citation.] This requires a showing of good cause. [Citation.]” (Hamilton v. Orange County Sheriff’s Department (2017) 8 Cal.App.5th 759, 765.) “[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.)

“When lack of diligence results in a party’s having insufficient information to know if facts essential to justify opposition may exist, and the party is therefore unable to provide the requisite affidavit under Code of Civil Procedure section 437c, subdivision (h), the trial judge may deny the request for continuance of the motion.” (Bahl, supra, 89 Cal.App.4th at 398.)

Here, good cause exists to continue the hearing on the motion for summary judgment and trial. Plaintiff contends that his prior counsel failed to retain a single expert witness on his behalf, and argues that expert testimony is essential to oppose the motion for summary judgment and prevail at trial, especially as Defendant presented five engineers and full expert support at mediation. (Thomas Decl., ¶ 4 and 6.) Although the Court previously continued the motion for summary judgment and trial once to allow Plaintiff to retain counsel, Plaintiff attests that he has contacted more than 10 plaintiff’s firms in Los Angeles and Southern California to take his case, but “[n]one were able to undertake the representation given the proximity of the MSJ hearing and trial date.” (Thomas Decl., ¶ 9.)

Plaintiff further attests that he continues to seek counsel. (Thomas Decl., ¶ 9.) Accordingly, Plaintiff’s inability to obtain evidence to oppose the motion for summary judgment is not due to his lack of diligence. Given that Plaintiff’s complaint is based on products liability allegations, expert testimony is undoubtedly necessary to support his opposition to Defendant’s motion for summary judgment.

Thus, the Court should continue the motion for summary judgment one last time to allow Plaintiff a final opportunity to retain new counsel. Because trial is currently scheduled for July 24, 2026, and a motion for summary judgment “shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise,” the Court should also continue the trial date. (C.C.P. § 437c(a)(3).) The Court continues the motion for summary judgment and trial to allow Plaintiff to retain new counsel. The Court and parties will confer on June 9, 2026 to select the new dates.