Filed 2/7/17 Certified for Publication 2/14/17 (order attached)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                               DIVISION THREE


VANESSA HAMILTON,

    Plaintiff and Appellant,                                      G051773

         v.                                                       (Super. Ct. No. 30-2013-00688296)

ORANGE COUNTY SHERIFF‘S                                           OPINION
DEPARTMENT,

    Defendant and Respondent.



                  Appeal from a judgment of the Superior Court of Orange County, David
Chaffee, Judge. Reversed.
                  Law Offices of Akudinobi & Ikonte, Emmanuel C. Akudinobi, and
Chijioke O. Ikonte for Plaintiff and Appellant.
                  Lawrence Beach Allen & Choi, David D. Lawrence, Christina M. Sprenger,
and Daniel S. Cha for Defendant and Respondent.
                                           *              *          *
              This appeal arises from an uncontested summary judgment. Plaintiff
contends the court erred by not accepting the parties‘ stipulation to continue the hearing
on defendant‘s summary judgment motion and the trial for 60 days. The parties had
agreed to these continuances to allow plaintiff to take depositions of the witnesses whose
declarations had been submitted in support of defendant‘s pending summary judgment
motion. Plaintiff had timely noticed these depositions but they could not go forward
because defendant‘s counsel was engaged in trial. The court had earlier granted
defendant‘s ex parte motion to continue the trial so that defendant‘s summary judgment
motion could be heard. Under these circumstances, we conclude the court abused its
discretion by failing to accommodate counsel‘s joint request for a further 60-day
continuance. Accordingly, we reverse the judgment.


                                 PROCEDUAL HISTORY


              Because the bulk of plaintiff‘s appeal concerns procedural matters, we
focus our attention on the procedural timeline leading up to the court‘s ruling. We will
address the evidence in support of the summary judgment in the discussion section
below.
              November 19, 2013: Plaintiff filed the present employment discrimination
lawsuit against the Orange County Sheriff‘s Department (the Sheriff). Plaintiff alleged
she is a female African-American who was denied graduation from the Sheriff‘s academy
on the basis of her race, and was then denied reinstatement in her prior position with the
Sheriff as a correctional service assistant on the basis of her race.
              January 15, 2014: The Sheriff answered.
              March 19, 2014: The Sheriff filed a case management statement
anticipating filing a motion for summary judgment.



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              March 26, 2014: Plaintiff filed a case management statement anticipating
completion of all discovery by October 2014.
              April 3, 2014: At a case management conference, the court set a trial date
of January 26, 2015. By operation of Code of Civil Procedure section 2024.020,
                                                               1
subdivision (a), the discovery cutoff was December 29, 2014. And by operation of
section 437c, subdivision (a)(3), the last day on which a summary judgment motion could
be heard was December 26, 2014. Assuming any summary judgment motion would be
personally served on counsel, the last day to file a summary judgment motion would be
                  2
October 13, 2014. (§ 437c, subd. (a)(2).)
              May 9, 2014: Plaintiff served written discovery.
              October 10, 2014: The Sheriff moved for summary judgment, setting the
hearing for January 30, 2015, four days after the scheduled trial date. By operation of
section 437c, subdivision (b)(2), the last date to file an opposition was January 16, 2015.
              October 24, 2014: The Sheriff moved ex parte to continue the trial date so
as to allow the summary judgment motion to be heard at least 30 days before trial.
Counsel explained that because of the court‘s requirement that hearing dates be reserved,
he was unable to reserve a hearing date for the summary judgment motion earlier than
January 30, 2015. The court granted the Sheriff‘s ex parte application to continue the
trial date to March 2, 2015.
              December 1, 2014: Plaintiff served deposition notices, setting the date for
December 12, 2014.
              December 3, 2014: The Sheriff objected to the deposition notices on the
ground that the date was set without prior consultation and counsel would be unavailable
1
              All further statutory references are to the Code of Civil Procedure unless
otherwise stated.
2
              The December 26 and October 13 dates fell on the Monday following the
arithmetic deadline by reason of section 12a.

                                             3
due to another trial; also, the document requests were overbroad. The objection stated,
―Notwithstanding the above, counsel have discussed this deposition and defense counsel
agrees to provide Plaintiff with mutually agreeable dates as soon as all appropriate
witnesses are ascertained and their schedules are confirmed. In the interim, the
deposition of Orange County Sheriff‘s Department‘s Person Most Knowledgeable
currently scheduled for December 12, 2014, cannot proceed as noticed.‖
              December 29, 2014 (the discovery cutoff date): Plaintiff‘s counsel e-
mailed defense counsel requesting available dates for the previously noticed depositions.
              January 8, 2015: Plaintiff‘s counsel e-mailed defense counsel noting he
was still waiting for available dates for the depositions.
              January 12, 2015: Plaintiff‘s counsel again e-mailed defense counsel,
stating, ―What is the status of your witnesses regarding the PMK and other depositions?
[¶] As you well know, the summary judgment opposition is due this Friday and we
cannot proceed without the necessary depositions which were put off because of your
trial. [¶] Are you guys amenable to a stipulation to continue the summary judgment
hearing date and trial because of the discovery issues or would you rather have me bring
this to the attention of the court via an ex parte petition?‖
              January 14, 2015: A stipulation and proposed order was filed to continue
the hearing on the summary judgment motion and the trial date for two months. The
stipulation articulated three bases providing good cause to grant the continuance. First,
the parties had recently finished a mandatory settlement conference and were hopeful the
matter would settle. Second, plaintiff had noticed but not taken depositions. ―The
inability to complete the depositions was because of calendar conflict of the Defendant‘s
counsels who were engaged in a trial in early to mid-December and as such were
unavailable . . . to defend the depositions.‖ Third, in light of the potential settlement, the
parties sought to conserve costs.



                                               4
               January 16, 2015 (the deadline for summary judgment opposition):
Plaintiff did not file any opposition to the motion for summary judgment.
               January 21, 2015: The court ―denied‖ the stipulation.
               January 30, 2015: The court held oral argument on the motion for
summary judgment and granted the motion. With regard to the stipulation, the court‘s
ruling stated, ―Sixteen days before the hearing, the parties submitted a stipulation to
continue the hearing and trial so that Plaintiff could complete discovery. There was no
showing of diligence in the stipulation. The Court declined to sign the proposed
stipulation order, and Plaintiff did not file a subsequent ex parte motion for a
continuance. The stipulation establishes that Plaintiff has not made a conscious choice to
not respond to the motion so it cannot be granted solely for lack of opposition under
Sacks v. FSR Brokerage Inc. (1992) 7 Cal.App.4th 950. Therefore, the papers must be
examined to determine if Defendant has met its burden of proof to establish that there is
no triable issue of fact.‖
               February 20, 2015: The court entered judgment.
               February 23, 2015: Plaintiff served a ―Notice of Motion and Motion for
Reconsideration of Order Granting the Defendant‘s Motion for Summary Judgment; Or
in the Alternative Motion for Mandatory Relief From the Judgment in Favor of the
                                                      3
Defendant – County of Orange.‖ (Emphasis added.) The alternative motion was
pursuant to section 473, subdivision (b), and it concerned only mandatory relief under
that section, not discretionary relief.
               March 27, 2015: The court denied the motion for reconsideration/relief on
the basis that the judgment was not a default judgment or dismissal. The court also
stated, ―Assuming failure to oppose the motion for summary judgment could be deemed a
default, it was not the result of counsel‘s mistake, inadvertence, surprise or neglect. The
3
              On appeal, plaintiff does not contend the court erred in denying
reconsideration.

                                              5
proposed stipulation shows that a conscious decision not to oppose the motion was
made.‖
              Plaintiff timely appealed from the judgment and subsequent order denying
the motion for reconsideration/relief.


                                         DISCUSSION


              The court denied the continuance based on plaintiff‘s lack of diligence.
Under the circumstances, that was an abuse of discretion.
              In seeking a continuance of a summary judgment motion, a plaintiff has
essentially two options. The first option is to comply with section 437c, subdivision (h),
which 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.‖ ―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).‖ (Bahl v. Bank of America (2001) 89
Cal.App.4th 389, 395-96).)
              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. (Mahoney v. Southland Mental Health
Associates Medical Group (1990) 223 Cal.App.3d 167, 170.) This requires a showing of

                                             6
good cause. (Id. at pp. 170-171.) ―[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 (Chavez).)
              Plaintiff plainly did not fulfill the requirements of section 437c, subdivision
(h). She did, however, make a showing of good cause. Plaintiff sought to depose the
witnesses who submitted declarations in conjunction with the summary judgment motion.
These witnesses were obviously essential to the motion. Those depositions were noticed
a month and a half prior to the opposition due date. Defense counsel was in trial at that
time, and as a courtesy plaintiff‘s counsel agreed to postpone the depositions. When
plaintiff‘s counsel sought deposition dates again towards the end of December, he was
ignored by defense counsel for two weeks. Then defense counsel, in an apparent
concession of fault, stipulated to a continuance. While that stipulation was, of course, not
binding on the court, principles of encouraging civility, encouraging the settlement
discussions that were ongoing, and disposing of cases on their merits counseled in favor
of accepting it, absent some good reason for rejecting it.
              The reason the court gave was lack of diligence. We recognize that
plaintiff‘s counsel was not optimally diligent. He could have noticed depositions sooner
after receiving the summary judgment motion. He could have followed up with defense
counsel earlier in December. And he certainly could have better attended to the
procedural details of obtaining a continuance.
              But this relatively minor lack of diligence did not justify the substantial
injustice the court‘s order created. (See Chavez, supra, 238 Cal.App.4th at p. 644 [one-

                                              7
month delay in deposing key witness did not justify denial of continuance of summary
judgment to depose witness].) Defendant obtained a judgment not on the merits of the
case, but on its ability to postpone depositions past the point of no return. Which is not to
suggest defendant intentionally undermined plaintiff‘s ability to respond — the
stipulation proves otherwise — but the net result was injustice.
              The injustice was magnified by the Sheriff‘s dilatory filing of a motion for
summary judgment on next to the last possible date, thereby necessitating a continuance
of the trial date to allow the motion to be heard. The court granted relief to the Sheriff to
accommodate that problem, but then denied plaintiff‘s need for relief which was also
caused by defendant‘s objection to attending plaintiff‘s duly noticed depositions. The
disparate treatment of counsel‘s respective problems was unnecessary and tilted the
scales of justice sharply in favor of the Sheriff.
              We recognize that trial courts are under pressure to process cases within the
timelines required by the Trial Court Delay Reduction Act (Gov. Code, § 68600 et seq.),
and to ―[a]dopt and utilize a firm, consistent policy against continuances, to the
maximum extent possible and reasonable, in all stages of the litigation.‖ (Gov. Code,
§ 68607, subd. (g).) As that statute indicates, however, the policy must be reasonable.
Plaintiff had not sought any prior continuances. And at the time of the hearing, this case
was not particularly old — 14 months, which was beyond the 12-month goal, but left
plenty of time to still meet the 18-month goal. (See Cal. Stds. Jud. Admin., § 2.2(f)(1).)
Where denial of a continuance would result in manifest injustice, as it did here, the policy
disfavoring continuances must give way. (Chavez, supra, 238 Cal.App.4th at p. 644
[―‗―[j]udges are faced with opposing responsibilities when continuances for the hearing
of summary judgment motions are sought. On the one hand, they are mandated by the
Trial Court Delay Reduction Act [citation] to actively assume and maintain control over
the pace of litigation. On the other hand, they must abide by the guiding principle of
deciding cases on their merits rather than on procedural deficiencies. [Citation.] Such

                                               8
decisions must be made in an atmosphere of substantial justice. When[, as here,] the two
policies collide head-on, the strong public policy favoring disposition on the merits
outweighs the competing policy favoring judicial efficiency‖‘‖].)


                                      DISPOSITION


              The judgment is reversed. Plaintiff shall recover her costs incurred on
appeal.



                                                 IKOLA, J.

WE CONCUR:



O‘LEARY, P. J.



BEDSWORTH, J.




                                             9
Filed 2/14/17



                             CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FOURTH APPELLATE DISTRICT

                                      DIVISION THREE

VANESSA HAMILTON,

    Plaintiff and Appellant,                           G051773

        v.                                             (Super. Ct. No. 30-2013-00688296)

ORANGE COUNTY SHERIFF‘S                                ORDER
DEPARTMENT,

    Defendant and Respondent.



                  On the court‘s own motion, the above-entitled unpublished opinion, filed
on February 7, 2017, is certified for publication in the Official Reports. The opinion
meets the standards set forth in California Rules of Court, rule 8.1105(c).


                                                    IKOLA, J.

WE CONCUR:



O‘LEARY, P. J.



BEDSWORTH, J.
