Need More Discovery to Oppose Summary Judgment? Use These Magic Words...

Timothy Kowal, Esq.
September 29, 2021

When opposing a motion for summary judgment, seeking a continuance to conduct additional discovery should always be considered. A single piece of evidence may be enough to successfully oppose summary judgment, both in the trial court and on appeal, so even if you don't have that piece of evidence yet, making a record that it might exist is critically important. And all that is required is an affidavit under Code of Civil Procedure section 437c(h), so why not file one?

But some courts may scrutinize this affidavit, as we are reminded in Begley v. Delta Dental of Cal. (D1d3 Aug. 31, 2021) 2021 WL 3878844 no. A159983 (nonpub. opn.). The plaintiff in that employment-discrimination case opposed summary judgment by filing an affidavit explaining she needed to take the deposition of the person most qualified about the employer's reorganization policy that led to the plaintiff's termination. Seems like a sound approach. But while section 437c(h) does not require much more specificity, some cases interpreting it do, and require the opposing party to state the "particular essential facts that may exist."

The plaintiff didn't include those magic words in her affidavit. So discovery denied, summary judgment granted, and affirmed on appeal.

The plaintiff had sued because she was being laid off from her job after informing her employer she would be taking medical leave to receive fertility treatments. When the plaintiff requested leave and disclosed the reason, the employer had made a comment about needing to adjust the budget in anticipation of the plaintiff becoming pregnant. When the employer gave the bad news, initially it told her the decision had nothing to do with either job performance or her fertility treatments, but later took the position the decision was based on job performance.

The plaintiff sued, and the employer-defendant moved for summary judgment on the basis that the lay off was part of a company-wide reorganization. The plaintiff sought to take the deposition of the employer's personal most qualified (CCP § 2025.230) about the reorganization policy, and filed an affidavit to continue the hearing on the MSJ. The plaintiff sought to learn from the PMQ deposition "all factual bases relied upon in deciding which employees would be terminated or laid off." But the trial court denied the continuance, and granted summary judgment.

The Court of Appeal affirmed. The party opposing MSJ does have a right to a discovery continuance under section 437c(h), but that right is only triggered by a specific showing of the evidence the opposing party expects to find:

Pursuant to section 437c, subdivision (h), “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, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had....”

So far, just based on this statutory language, one would expect the plaintiff's continuance here to be granted. In light of the employer's showing of a policy supporting the decision, the plaintiff has to show intent to discriminate, which means she needs to know how the policy was developed — i.e., it is "essential" to her opposition to summary judgment.

But courts have construed the requirements more strictly than that: The opposing party's declaration must show “(1) the facts to be obtained are essential to opposing the motion, (2) there is reason to believe such facts may exist, and (3) the reasons why additional time is needed to obtain these facts. [Citation.]" (Chavez v. 24 Hour Fitness USA, Inc. (2015) 238 Cal.App.4th 632, 643.) (Note that #2 here is only arguably supported by the text of section 437c(h).)

"The reason for this ‘exacting requirement' [citation] is to prevent ‘every unprepared party who simply files a declaration stating that unspecified essential facts may exist' [citation] from using the statute ‘as a device to get an automatic continuance.' [Citation.] ‘The party seeking the continuance must justify the need, by detailing both the particular essential facts that may exist and the specific reasons why they cannot then be presented.' ” (Chavez, supra, 238 Cal.App.4th at 643.)

Comment: This gloss on the section 437c(h) discovery continuance is significant. It means that, in the event of an early MSJ filed before the opposing party has conducted discovery, the opposing party's otherwise liberal right to discovery now may be subject to a sort of good-cause requirement. That means, no fishing expeditions, and no discovery of information designed merely to lead to admissible evidence. All that discovery must be completed before the MSJ opposition is due. After that, to get the section 437c(h), Chavez says you basically have to already know what you're going to find.

Even still, the plaintiff's affidavit here presents a close call: the facts sought were essential, and given the timing of the adverse employment decision (coupled with the usual liberal right to discovery), there may have been reason to believe the PMQ would have facts showing an intent to discriminate. And the record does not indicate the plaintiff had been dilatory in conducting discovery.

But the court emphasized that, under Chavez v. 24 Hour Fitness, the party opposing summary judgment is required to state "the particular essential facts" that might exist. (Chavez v. 24 Hour Fitness USA, Inc., supra, 238 Cal.App.4th at p. 643.) (Again, this is slightly beyond what the text of section 437c(h) actually requires, and seems to impose a burden on the opposing party that is contrary to the ordinary rules of discovery in civil litigation.)

The better reason is the one the court gives more or less as an afterthought, which is that the moving defendant had offered to continue the hearing by two weeks to allow the plaintiff to take the PMQ deposition, but the plaintiff refused. "The court could reasonably have found her rejection of that offer indicated gamesmanship, rather than a valid need for additional discovery." So the outcome likely would have been the same with or without the Chavez gloss on section 437c(h).

So despite this unpublished opinion, you might still want to consider seeking a discovery continuance of an MSJ hearing under section 437c(h). But be prepared to invoke the magic words "particular essential facts" in your affidavit.

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.