DAR Wins Appeal in Landslide Case – Clarifies Right to Discovery to Oppose Summary Judgment

Jim Weixel of DAR’s San Francisco office recently scored a reversal of a summary judgment entered against the firm’s clients, two homeowners who had lost their home in a landslide.  One defendant, a church located across a stream from the clients’ back property line, moved for summary judgment based on the conclusion of the church’s experts that water runoff from its property could not have been a substantial factor in causing the land movement on the clients’ property.  Weixel and the clients’ personal counsel sought a continuance of the motion to conduct a site inspection and water testing on the church’s property, but the trial court refused, and subsequently granted summary judgment.

In a published decision, the Court of Appeal reversed.  The court held that Weixel’s declaration in support of the continuance met the requirements of CCP 437c(h) “to the letter,” as it laid out precisely what discovery was being sought and why it was needed to oppose the motion.  The declaration also established that there was no urgency to the hearing, as there was no trial date or other impending deadlines at the time.  Under those circumstances, the court held, it was an abuse of discretion for the trial court to deny the request for continuance.

The decision is notable not only as a win for the clients, but also because it reconciles a somewhat inconsistent body of case law regarding the rare circumstances under which continuances can ever be denied under 437c(h  Under the reasoning used by the Court of Appeal, a continuance is “virtually mandated” if the party opposing summary judgment is able to support its request for a continuance with the sort of declaration Weixel submitted here.  The decision gave very clear directions about the subdivision’s requirements, which should prove helpful to litigants seeking additional time to conduct discovery in opposition to motions for summary judgment.

The case is Insalaco v. Hope Lutheran Church of W. Contra Costa County, No. A156562, and the decision is available here.