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Do I have a right to postpone summary judgment to get more time for discovery?

Cerritos, CA |
Filed under: Discovery

Opposing counsel have been stalling and abusing the discovery process and have not been answering any of my discovery while they got all the discovery they asked of me. They then say that they will be bringing an MSJ soon when I don't have any discovery from them. In this case can I ask the court to postpone the hearing on the summary judgment until I get adequate discovery from them? If the court refuses since I believe the judge is biased for several reasons and actions taken including the fact that he is not doing anything for their lack of discovery responses...what actions can be taken in this case?

Additionally, can a judge distinguish between how he treats me and how he treats other party and that be warranted? For example, he is refusing to hear any of my motions to compel discovery ex parte, while he is hearing their motions ex parte. And he also tells me that from now on I have to bring all my motions through regular scheuled motions which I am not able to bring until a month later because for some reason his department is not willing to schedule me earlier. Any actions that can be taken here? I believe so much he does everything the other attorney asks for even if its not supported by any legal theory and when it's to my disadvantage. I have consulted with several attorneys regarding actions by this judge and their answer is usually that they have never heard of such things being done or that what is happening is ridiculous and abuse of discovery process.

Attorney Answers 4

Posted

Yes, it is possible. CA Code of Civil Procedure section 437c, subdivisions (h) and (i) provide as follows:

" (h) 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, then be presented, the court shall deny the motion,
or order a continuance to permit affidavits to be obtained or
discovery to be had or may 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.

(i) If, after granting a continuance to allow specified additional
discovery, the court determines that the party seeking summary
judgment has unreasonably failed to allow the discovery to be
conducted, the court shall grant a continuance to permit the
discovery to go forward or deny the motion for summary judgment or
summary adjudication. This section does not affect or limit the
ability of any party to compel discovery under the Civil Discovery
Act (Title 4 (commencing with Section 2016.010) of Part 4)."

But note that because the motion for summary judgment requires at least 75 days notice, you ought to be able to conduct discovery within that time period to obtain the necessary evidence needed to defeat the MSJ.

Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice for a particular case. This Avvo.com posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, please consult with your own attorney.

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2 comments

Asker

Posted

I understand what you are saying above but what if the judge is not allowing me to bring ex parte motions to the point of this: He had previously agreed "once" that I can apply for order shortening time to hear my motion to compel answers to my interrogatories since opposing party failed to respond timely ( so obviously that also waives any objections) which I just did. He however contradicted what he gave me permission to do previously an not only is prohibiting me from bringing the motion ex parte, but he also refused the shortening time (which he previously said I can do just a week and a half before) and said that if I bring motions again that are not regularly scheduled, I can be considered a vexatious litigant. All that because I am trying to obtain discovery before summary judgment. Any thoughts in this case since even the 75 days until MSJ is heard will not be enough since it takes at least a month for my motion to be heard by him??

Asker

Posted

Also...can I really be a vexatious litigant because I'm filing motions to try obtaining needed discovery???

Posted

You can absolutely request a continuance of the summary judgment motion. This is especially true if the other side (the party bringing the motion) has not been cooperative with discovery. You also need to show that you have acted diligently in attempting to obtain discovery. If you have not already done so, you should consider filing motions to compel the discovery that is not been responded to.

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Posted

I agree with my esteemed colleague Mr. Chen. additionally, you state that the judge is " biased" because he hasn't done anything about you not receiving discovery responses. however, the burden us on you to first " meet and confer" with opposing counsel regarding the adequacy of discovery responses and then, if need be, to file a motion to compel responses.

The opinions published on this forum should not be construed as creating an attorney-client relationship for any purpose, and is intended only for providing informal preliminary information to a legal inquiry. Victor Look - 818-444-1779

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3 comments

Asker

Posted

I have been trying to do this but the judge is not helping me out but rather helping them get their discovery done ASAP. Any thoughts on my response to Mr. Chen above regarding me being prohibited from bringing my motion to compel ex parte and warned that I would be a vexatious litigant?

Victor Look

Victor Look

Posted

Did you follow the proper procedure by engaging in " meet and confer" with opposing counsel first? As far as being a vexatious litigant, you must bring motions or otherwise behave in a frivolous manner. Regarding filing a motion to compel on an ex parte basis, it depends on whether you can convince the judge that this is an emergency situation where if relief is not granted, you will suffer "irreparable harm".

Frank Wei-Hong Chen

Frank Wei-Hong Chen

Posted

You wouldn't be deemed a vexatious litigant for bringing a multitude of motions in the same case. As defined by California Code of Civil Procedure section 391(b)(1), a "vexatious litigant" means a person who, in the immediately preceding seven-year period has commenced, prosecuted, or maintained in propria persona at least five litigations other than in a small claims court that have been (i) finally determined adversely to the person or (ii) unjustifiably permitted to remain pending at least two years without having been brought to trial or hearing." "Litigation" means any civil action or proceeding, commenced, maintained or pending in any state or federal court".

Posted

EX parte motions are only approptiate for certain matters. They are not for motions to compel discovery. I dont know your court procedures, but it is not unusual for it to take 6 weeks to get a hearing calendared for a motion to compel. With the reqd deadlines for serving the motion, opposing, and replying, you usually need to start with a court date about 30 days away. if you have already pissed off the judge for not following the proper procedures, you better start doing so. Just because you are not a lawyer doesnt mean the court has to cut you slack on the rules. This is why it is hard to represent yourself. Consider hiring a lawyer.

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