MSJ Affirmed on New Ground on Appeal; Request for Continuance Denied Because Not Supported by Declaration

Timothy Kowal, Esq.
September 15, 2021

There are two important reminders about motions for summary judgment in Steger v. CSJ Providence St. Joseph Medical Center (D2d5 Aug. 16, 2021) 2021 WL 3615548 no. B304043 (nonpub. opn.). The first reminder is that the appellate court may affirm on any ground, even if the trial court never reached that ground. The second reminder is that, if you are opposing an MSJ and you have not had a chance to complete discovery on any of the grounds advanced in the motion, you must say so in a CCP § 437c(h) declaration: just arguing it in the opposition is not enough.

The plaintiff in Steger sued his doctors and the hospital for medical malpractice. The hospital moved for summary judgment on the ground it could not be liable for malpractice because it did not employ the doctors — they were independent contractors. In his opposition, the plaintiff backtracked slightly, conceding the hospital was not directly liable for malpractice, but that it was liable because the doctors were the ostensible agents for the hospital.

The trial court granted the hospital's motion on the ground that there were no triable issues the hospital's conduct fell below the standard of care. The plaintiff's counsel had asked in the opposition for a continuance to conduct additional discovery pursuant to Code of Civil Procedure section 437c(h), but that request was not supported by an affidavit so the trial court denied it.

The Court of Appeal May Affirm on a Different Ground Than Relied Upon by the Trial Court:

On appeal, the Second District Court of Appeal affirmed on the ground that no ostensible agency relationship existed. Although this alternative ground raised by the hospital was not the basis for the trial court's order, it may be a basis to affirm: “ ‘[a]s a corollary of the de novo review standard, the appellate court may affirm a summary judgment on any correct legal theory, as long as the parties had an adequate opportunity to address the theory in the trial court. [Citation.]’ [Citation.]” (California School of Culinary Arts v. Lujan (2003) 112 Cal.App.4th 16, 22.)

The court reasoned that the parties had had an opportunity to argue the ostensible agency theory in the trial court, so it was empowered to rely on that ground to affirm.

The court also held the trial court did not abuse its discretion in denying the plaintiff's request for a continuance to conduct additional discovery because the plaintiff had not supported that request with a declaration as CCP § 437c(h) requires.

The Importance of Properly Raising the Issue that Additional Discovery Is Needed in MSJ Practice and Appeal:

In an abundance of caution, however, the appellate court invited supplemental briefing on the issue. Code of Civil Procedure section 437c(m)(2) requires the appellate court to invite supplemental briefing if the court intends to rely on a ground not relied upon by the trial court.

At this point, the plaintiff-appellant seized on section 437c(m)(2), which provides that, in those supplemental briefs, a party "may include an argument that additional evidence relating to that ground exists, but the party has not had an adequate opportunity to present the evidence or to conduct discovery on the issue." Unlike section 437c(h), this request is not required to be supported by a declaration.

But the court still rejected it. The court said that the appellant "misrepresent[ed] the record" to support the request for additional discovery. In light of this "false representation," the appellant's "last minute request" was "not well taken."

The Upshot: When opposing a MSJ, support any request for a continuance based on inadequate discovery by affidavit in the trial court, and if the appellate court invites briefing on it on appeal, but scrupulously faithful to the record in making your request there. (Being scrupulously faithful to the record is a good practice in all other regards, too.)

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at, and publishes a newsletter of appellate tips for trial attorneys at His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at or (714) 641-1232.

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