Castillo v. Walsh Construction Co. CA1/5

Filed 8/22/23 Castillo v. Walsh Construction Co. CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

IGNACIO CASTILLO, Plaintiff and Appellant, A165149 v. WALSH CONSTRUCTION (San Francisco County COMPANY II, LLC, Super. Ct. No. CGC-21-589434) Defendant and Respondent.

In January 2021, plaintiff and appellant Ignacio Castillo (appellant) filed a complaint against defendant and respondent Walsh Construction Company II, LLC (respondent), alleging 18 causes of action claiming employment discrimination and retaliation, and wage and hour violations. Respondent deposed appellant in October and filed a motion for summary judgment on November 8. The hearing on the motion was set for January 24, 2022, and appellant’s opposition was due by January 10, 2022. On January 10, 2022, appellant filed a two-page opposition to respondent’s motion for summary judgment that did not address the motion on the merits. Instead, appellant requested continuance of the motion under Code of Civil Procedure section 437c, subdivision (h) (section 437c(h)). Accompanying the opposition was a declaration from one of appellant’s attorneys setting forth the grounds for the continuance. The declaration

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averred that the parties had previously submitted a joint stipulation to continue the motion and trial;1 that appellant had not delayed discovery; that appellant had noticed the depositions of two named employees of respondent for March 2022; that the depositions “are necessary to discover the information to justify Plaintiff’s opposition to the Motion;” and that “[d]ue to continued [e]ffects of the COVID-19 pandemic,” appellant’s attorneys “could not schedule these depositions any earlier than 2022.” On January 24, 2022, the trial court denied the requested continuance and granted respondent’s motion for summary judgment. On February 10, the court entered judgment in favor of respondent. Section 437c(h) “ ‘mandates that the [trial] court grant a continuance of a hearing on a motion for summary judgment “ ‘ “upon a good faith showing by affidavit that a continuance is needed to obtain facts essential to justify opposition to the motion.” ’ ” ’ ” (Lerma v. Cnty. of Orange (2004) 120 Cal.App.4th 709, 714 (Lerma).) Section 437c(h) provides, “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, 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.”