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  • Donna Bader
  • Attorney at Law
  • Certified Specialist in Appellate Law
  • 668 North Coast Hwy, Ste. 1355
  • Laguna Beach, CA  92651
  • Tel.: (949) 494-7455
  • Fax: (949) 494-1017
  • Donna@DonnaBader.Com



Donna Bader

Attorney at Law

Certified Specialist in Appellate Law

668 North Coast Hwy, Ste. 1355

Laguna Beach, CA  92651

Tel.: (949) 494-7455

Fax: (949) 494-1017




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Reading unpublished opinions by the courts of appeal

Even though unpublished California opinions cannot be cited in appellate briefs, there is a value in reading them.  The courts file more unpublished opinions than published ones, and there is a good possibility you can find out how a specific court, or even a justice, views certain issues.  You can also test your legal research against the research in the opinion. For instance, I came across a decision by the Fourth Appellate District, Division Three that I thought might be helpful to those of you seeking a continuance in motions for summary judgment.  In Shelton v. Lions Eye Institute for Transplant and Research, Case No. G042372, the plaintiff appealed from a summary judgment on her negligence claims arising from the transplant of an infected cornea in her eye.

At first, plaintiff filed a complaint against UCI and four physicians, claiming they were negligent in treating her ophthalmological problems and caused the loss of her eye.  She then filed a first amended complaint against Lions, claiming it provided the contaminated cornea.  Lions filed a motion for summary judgment, arguing it met the standard of care, which does not require eye banks to culture tissue.  Instead, eye banks recommend that the surgeon culture the cornea at the time of surgery.  The  UCI surgeon was notified that Lions did not culture the cornea.  As part of its motion, Lions denied the tissue became infected as the result of any act or omission of its part, although it later withdrew its facts in the Separate Statement that the cornea was free from infection at the time it was shipped from Lions to UCI or at the time it arrived at UCI.

Plaintiff then set a number of depositions and the UCI defendants requested a continuance so they could conduct discovery on questions rained by Lions' motion.  Plaintiff joined in that motion for continuance and opposed the summary judgment motion, claiming she could not fully oppose Lions' motion until outstanding discovery had been completed.  Plaintiff's attorney indicated he had not completed his discovery because of a trial and work on another case.  He listed the issues that needed to be addressed and also listed depositions noticed for three separate days.  After Lions withdrew its two statements, the court elected to treat the motion as a motion for judgment on the pleadings.  It granted the motion and allowed plaintiff leave to amend her complaint.

Plaintiff filed a second amended complaint, which was followed by a second motion for summary judgment by Lions.  The trial court also sustained with leave to amend Lions' demurrer to one of plaintiff's causes of action.  Four day later, plaintiff filed a third amended complaint.  In response to Lions' second summary judgment motion, plaintiff simply filed an opposition that argued the motion should be denied or continued to allow plaintiff to complete her discovery.  She did not oppose the motion on its in merits.  Plaintiff's attorney claimed he needed to complete "a considerable amount of discovery" to oppose the motion.  Plaintiff's attorney relied on statements made in his earlier declaration, which was filed over four months before.  The request for a continuance was denied.  The trial court found plaintiff's attorney had not been diligent in conducting discovery and had failed to show good cause for a continuance.  The attorney's declaration also failed to explain why he did not obtain the discovery he previously identified in his earlier declaration.

The Court of Appeal found that the threshold question in a request for a continuance is "Does the supporting affidavit show 'that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented"?  (Code Civ. Proc. sec. 437c(h).)  If the opposing party makes such a showing, then the trial court is required to grant a continuance or deny the motion.  The court stated the following requisites of such a request:

  • The declaration must be in good faith.

  • It must show "that additional time is needed to obtain facts essential to" the opposition.

  • It must show "there is reason to believe such facts may exist" or  it must state facts "establishing a likelihood that controverting evidence may exist."

  • The declaration must set forth the reasons why "additional time is needed to obtain these facts."

  • The declaration must present the facts and reasons outlined above with particularity as to the particulate essential facts that may exist and the specific reasons why they cannot then be presented.

The reviewing court concluded the declaration provided by plaintiff's attorney was insufficient because it failed to specify "any particular facts which might be obtained by discovery and any reasons why such facts were likely to exist."  The long list provided by plaintiff's counsel was construed to be a "fishing expedition" or "laundry list."  It also found that plaintiff failed to provide adequate justification for her delayed discovery.  It rejected any argument that discovery was deferred at defendant's suggestion to save money pending mediation.  The court concluded that diligence is pursuing discovery is a recognized factor in any motion for a continuance.

While you might not be able to cite this case, you can certainly learn what the trial and appellate courts are looking for in requests for a continuance.  Diligence is important, but don't think that a declaration that lists an exhaustive amount of discovery - which is uncompleted or unscheduled - or facts will help.  The longer the list, the more the trial court might wonder why discovery hadn't been completed earlier, especially if the case has been on the docket for a while.  I believe such a declaration should be more specific and limited than general and all-encompassing.  It should focus on evidence that is essential to oppose the motion, rather than discovery necessary for a full-blown trial.

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