1 Any Attorney or Party

Any Street
2 Any Town, CA 55555

3 714-555-5555

4 Any Attorney or Party

8 Superior Court of the State of California

9 For the County of _________________

10

11 Any Plaintiff, ) Case No.

)
12 Plaintiff, ) NOTICE OF MOTION AND MOTION FOR
) CONTINUANCE OF HEARING ON MOTION FOR
13 vs. ) SUMMARY JUDGMENT OR IN THE
) ALTERNATIVE FOR SUMMARY
14 Any Defendant, and DOES 1-5 ) ADJUDICATION; MEMORANDUM OF POINTS
) AND AUTHORITIES; DECLARATION OF
15 Defendants. ) __________; EXHIBITS
)
16 ) DATE:
) TIME:
17 ) DEPT:
)
18 )
)
19

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To subscribe to my FREE weekly legal newsletter visit
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http://www.legaldocspro.net/newsletter.htm and enter your e-mail
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23 address. Be sure to remove this notice and all other notices before
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using this document.
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PLEASE TAKE NOTICE THAT on _____________________, at ________, or as soon after
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that as the matter can be heard, in Dept. _______of the above-entitled Court located at
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1 ____________________________________________, ______________will and does move the

2 Court, pursuant to Code of Civil Procedure § 437c(h) for a continuance of the hearing on
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_______________________motion for summary judgment or in the alternative summary
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adjudication presently scheduled for hearing on ______________. ________ requests that the Court
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order a continuance of the hearing on the motion for summary judgment for a period of _______ days
6

7 to allow them to obtain the necessary discovery in order to prepare an effective opposition to the

8 motion for summary judgment.

9
This motion is made on the ground that essential evidence may exist but cannot be presented
10
in time for the presently scheduled hearing, for the following reason(s): STATE HERE THE
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REASONS SUCH AS: ESSENTIAL EVIDENCE MAY EXIST BUT CANNOT BE
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13 PRESENTED AT THIS TIME IN THAT THE PARTY SEEKING SUMMARY JUDGMENT

14 HAS SUBMITTED THE DECLARATION OF A WITNESS THAT CONTAINS CRITICAL

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FACTS THAT WERE NOT PREVIOUSLY DISCLOSED TO THE RESPONDING PARTY
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WHO IS THUS ENTITLED TO TAKE THE DEPOSITION OF THE WITNESS.
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This motion is based upon this notice, the attached memorandum of points and authorities, the
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19 attached declaration of ______________ and Exhibits attached thereto, the files and records in this

20 action, including __________________Motion for Summary Judgment or in the Alternative for

21 Summary Adjudication, and on such other oral and/or documentary evidence as may be presented at
22
the hearing on the Motion.
23
Dated________________ ___________________________________________________
24 ANY ATTORNEY OR PARTY
25

26 Note that you should file and serve this motion as soon as possible
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after being served with the motion for summary judgment and

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1 remember that you MUST file and serve this motion at least 14
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calendar days before the hearing on the motion for summary judgment.
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1 MEMORANDUM OF POINTS AND AUTHORITIES

2 I.
3
STATEMENT OF FACTS
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This case arises out of ________________________________________________.
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Put down a brief description of the case, such as breach of contract action, with cross-
6

7 complaint, etc.

8 Plaintiff’s complaint alleges that________________________________________. Defendant

9
denies all of the allegations of Plaintiffs’ complaint.
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Plaintiffs filed their motion for summary judgment or in the alternative summary adjudication
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contending that Defendants have no defense to the complaint and that they are entitled to judgment as
12

13 a matter of law or

14 Defendants filed their motion for summary judgment or in the alternative summary
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adjudication contending that they entitled to summary judgment in their favor on the grounds that
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they have met their burden of showing that each element of the cause of action in question has been
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proved, and that there is no defense thereto.
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19 _________ requests that the Court order a continuance of the hearing on the motion for

20 summary judgment or in the alternative summary adjudication on the grounds that facts essential to
21 their opposition may exist but cannot be presented at this time in that: Modify the following for your
22
particular situation
23
_______________ has submitted the declaration of a witness that contains critical facts that
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25 were not previously disclosed to the responding party who is thus entitled to take the deposition of

26 the witness. See the declaration of __________ and Exhibits attached thereto, concurrently filed and
27 served herewith and incorporated herein by reference.
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1 Be sure to modify these paragraphs to suit your individual
2

3
situation. Do NOT just use the wording here unless it definitely applies
4
to your particular situation.
5
II.
6

7 LEGAL ARGUMENT

8 A. THIS COURT HAS THE STATUTORY AUTHORITY TO ORDER A

9
CONTINUANCE OF THE HEARING ON THE MOTION FOR SUMMARY
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JUDGMENT AS __________ HAS SHOWN THAT FACTS ESSENTIAL TO THEIR
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OPPOSITION MAY EXIST BUT CANNOT BE PRESENTED AT THIS TIME.
12

13 This Court has the statutory authority to order a continuance of the hearing on the motion for

14 summary judgment or in the alternative summary adjudication as _______ has met their burden of
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showing that facts essential to their opposition may exist but cannot be presented at this time.
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Code of Civil Procedure § 437c(h) states that,
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“If it appears from the affidavits submitted in opposition to a motion for summary judgment
18

19 or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for

20 reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits
21 to be obtained or discovery to be had, or make any other order as may be just. The application to
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continue the motion to obtain necessary discovery may also be made by ex parte motion at any time
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on or before the date the opposition response to the motion is due.”
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25 If the opposing party shows by declaration that essential evidence “may exist but cannot, for

26 reasons stated, then be presented, the court shall deny the motion” or continue it for a reasonable
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1 period, or “make any other order as may be just.” See Bahl v. Bank of America (2001) 89 Cal.App.

2 4th 389, 395.

3
At least two California Courts of Appeal have stated in published decisions that once the party
4
opposing the motion for summary judgment has met their burden a continuance is mandated, and that
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the party does not need to show essential evidence does exist, only that it may exist.
6

7 Thus, a continuance (normally a matter within the court’s discretion) is “virtually mandated”

8 where the nonmoving party makes the requisite showing. The party need not show that essential
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evidence does exist, but only that it may exist. See Dee v. Vintage Petroleum, Inc. (2003) 106
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Cal.App. 4th 30, 34; see also Frazee v. Seely (2002) 95 Cal.App.4th 627, 634.
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“The summary judgment procedure is drastic; any doubts about the propriety of granting the
12

13 motions should be resolved in favor of the motions' opponent.” Leach v. Home Savings & Loan

14 Assn., (1986) 185 Cal. App. 3d 1295, 1303 (citing Rowland v. Christian (1968) 69 Cal.2d 108, 111.
15
B. THE DECLARATION OF __________ CLEARLY ESTABLISHES GOOD
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CAUSE FOR THIS COURT TO ORDER A CONTINUANCE OF THE HEARING ON
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THE MOTION FOR SUMMARY JUDGMENT AS __________ HAS SHOWN THAT
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19 FACTS ESSENTIAL TO THEIR OPPOSITION MAY EXIST BUT CANNOT BE

20 PRESENTED AT THIS TIME.

21 The declaration of ________ clearly establishes good cause in that it details,
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 Specific facts establishing a likelihood that controverting evidence may exist and why the
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information sought is essential to opposing the motion;
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25  The specific reasons why such evidence cannot be presented at the present time;

26  An estimate of the time necessary to obtain such evidence; and

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 The specific steps or procedures the opposing party intends to utilize to obtain such evidence.
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1 _______ contends that they have established good cause for a continuance of the hearing on

2 the motion for summary judgment.

3
The court must determine whether the party requesting the continuance has established good
4
cause for it. That determination is within the court’s discretion. See Lerma v. County of Orange
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(2004) 120 Cal.App. 4th 709, 716; see also Chavez v. 24 Hour Fitness USA, Inc. (2015) 238 Cal.App.
6

7 4th 632, 643, 644 (abuse of discretion to refuse continuance when papers showed proposed discovery

8 “essential” to the opposition.)

9
Numerous published decisions state that in most cases, the court’s discretion should be
10
exercised in favor of granting a continuance: “The interests at stake are too high to sanction the denial
11
of a continuance without good reason.” Denton v. City & County of San Francisco (2017) 16
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13 Cal.App. 5th 779, 794 (citing text); see also Hamilton v. Orange County Sheriff’s Dept. (2017) 8

14 Cal.App. 5th 759, 765-766 (trial court should have accepted stipulation to continue hearing to permit
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depositions of key witnesses whose declarations had been submitted with motion, where depositions
16
had been timely noticed and good cause shown.)
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C. THE FACTORS CONSIDERED IN DETERMINING WHETHER TO ORDER
18

19 A CONTINUANCE OF A HEARING ON A MOTION FOR SUMMARY JUDGMENT

20 WEIGH IN FAVOR OF THE OPPOSING PARTY

21 __________ contends that the factors considered in determining whether to continue a
22
hearing on a motion for summary judgment weigh in their favor as in determining whether to
23
continue a summary judgment motion to obtain additional evidence, most courts consider the
24

25 following:

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1 • The length of time the case has been pending. See Hoffman v. Sports Car Club of America

2 (1986) 180 Cal.App. 3d 119, 127 in this case the opposing party has only had ________ months to
3
pursue discovery.
4
• The length of time the requesting party had to oppose the motion. See Frazee v. Seely, supra,
5
95 Cal. App4th at 634 (abuse of discretion to deny continuance where requesting party had less than
6

7 a month to oppose motion.)

8 • The proximity of the trial date or the 30-day discovery cut-off before trial. The trial date is
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currently scheduled for ____________ which is _____________ days away.
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• Whether the continuance motion could have been made earlier. See Roth v. Rhodes (1994)
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25 Cal.App. 4th 530, 548. ________ just became aware of the need for a continuance on ______
12

13 which is only ____ days away.

14 • Prior continuances for this purpose. See Wiler v. Firestone Tire & Rubber Co. (1979) 95
15
Cal.App. 3d 621, 628. There have been no prior continuances of the hearing on the motion for
16
summary judgment.
17
• Whether the evidence sought is “essential” to the issue to be adjudicated. Chavez v. 24 Hour
18

19 Fitness USA, Inc., supra, 238 Cal.App.4th at 644 (citing text) (where most of these factors favored

20 continuance, trial court erred in denying it). The evidence sought is absolutely essential to the issues
21 that will be adjudicated in this case.
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• Death or serious illness of an attorney or party is normally good cause for granting a
23
continuance. See Lerma v. County of Orange (2004) 120 Cal.App. 4th 709, 716.
24

25 Be sure to modify these paragraphs to suit your individual

26
situation. Do NOT just use the wording here unless it definitely applies
27

28 to your particular situation.

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1 D. THE COURT SHOULD EXERCISE ITS DISCRETION AND GRANT A

2 CONTINUANCE OF THE HEARING TO ENSURE THAT THIS CASE IS DECIDED

3
ON ITS MERITS AND __________ IS NOT DEPRIVED OF A FAIR HEARING
4
Numerous cases from the California Supreme Court and Courts of Appeal have stated that a
5
trial court has a duty to grant a continuance to ensure that cases are heard on the merits and a party is
6

7 not deprived of a fair hearing.

8 Trial court's discretion in ruling on motions for continuance is abused where lack of
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continuance results in denial of fair hearing. Rankin v. Curtis (1986) 183 Cal. App.3d 939, 947. See
10
also Rebney v. Wells Fargo Bank (1990) 220 Cal.App 3d 1117, 1141.
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“‘the policy of expeditious processing of civil cases’” does not “‘override, in all situations, the
12

13 trial court’s obligation to hear cases on the merits.’” Garcia v. McCutchen (1997) 16 Cal.4th 469, 480

14 citations omitted; see also Estate of Meeker (1993) 13 Cal.App.4th 1099, 1106.
15
In re Marriage of Hoffmeister (1984) 161 Cal.App.3d 1163, 1169. "'(T)he trial judge must
16
exercise his discretion with due regard to all interests involved, and the refusal of a continuance
17
which has the practical effect of denying the applicant a fair hearing is reversible error"''', (emphasis
18

19 added.)

20 The Court has discretion to grant or deny a continuance. Lazarus v. Titmus (1998) 64 Cal.
21 App. 4th 1242, 1249 (citing text).
22
__________ has shown good cause in that circumstances beyond their control have made it
23
necessary to request a continuance of the hearing on the motion for summary judgment.
24

25 Be sure to modify these paragraphs to suit your individual

26
situation. Do NOT just use the wording here unless it definitely applies
27

28 to your particular situation.

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1 III.

2 CONCLUSION
3
Based on the foregoing, ______________ requests that the Court order a continuance of the
4
hearing on the motion for summary judgment for a period of _______ days to allow them to obtain
5
the necessary discovery in order to prepare an effective opposition to the motion for summary
6

7 judgment.

8 Dated________________ ___________________________________________________
ANY ATTORNEY OR PARTY
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1

2 Superior Court of the State of California

3 For the County of _________________

5
Any Plaintiff, ) Case No.
6 )
Plaintiff, ) DECLARATION OF _____________ IN
7 ) SUPPORT OF MOTION FOR CONTINUANCE OF
vs. ) HEARING ON MOTION FOR SUMMARY
8 ) JUDGMENT OR IN THE
Any Defendant, and DOES 1-5 ) ALTERNATIVE FOR SUMMARY
9 ) ADJUDICATION; EXHIBITS
Defendants. )
10 ) DATE:
) TIME:
11 ) DEPT:
)
12 )
)
13

14 I, __________________, declare as follows:

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USE THIS WORDING IF AN ATTORNEY SIGNS THE DECLARATION:
16
1. I am an attorney at law duly licensed to practice before all courts in the State of
17

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California. I am the attorney of record for __________, in the above-entitled proceedings and, as

19 such, I have knowledge of the matters contained herein and they are true and correct of my own

20 personal knowledge, except for those matters stated upon information and belief as to those matters, I
21
believe them to be true and correct. If called and sworn as a witness, I could and would testify
22
competently thereto.
23
USE THIS WORDING IF THE MOVING PARTY SIGNS THIS DECLARATION
24

25 1. I am a party to this action. I am over the age of 18 years. I have personal

26 knowledge of the facts contained in this declaration, and if called as a witness could and would testify
27
competently to the facts as stated herein.
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1 2. I make this declaration in support of the motion for a continuance of the hearing on the

2 Motion for Summary Judgment or in the Alternative Summary Adjudication presently scheduled for
3
hearing on ______________.
4
3. I/my client requests that the Court order a continuance of the hearing on the motion for
5
summary judgment for a period of _______ days to allow me/my client to obtain the necessary
6

7 discovery in order to prepare an effective opposition to the motion for summary judgment.

8 4. This motion is made on the grounds that essential evidence may exist but cannot be
9
presented in time for the presently scheduled hearing, for the following reason(s): STATE HERE
10
THE REASONS SUCH AS: ESSENTIAL EVIDENCE MAY EXIST BUT CANNOT BE
11
PRESENTED AT THIS TIME IN THAT THE PARTY SEEKING SUMMARY JUDGMENT
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13 HAS SUBMITTED THE DECLARATION OF A WITNESS THAT CONTAINS CRITICAL

14 FACTS THAT WERE NOT PREVIOUSLY DISCLOSED TO THE RESPONDING PARTY

15
WHO IS THUS ENTITLED TO TAKE THE DEPOSITION OF THE WITNESS.
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5. I first became aware that a continuance of the hearing was necessary on _________
17
when I first reviewed the motion for summary judgment.
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19 6. LIST HERE ANY OTHER SPECIFIC FACTS THAT SUPPORT YOUR

20 MOTION FOR A CONTINUANCE OF THE HEARING ON THE MOTION FOR

21 SUMMARY JUDGMENT AND BE SURE TO CITE TO ANY ATTACHED EXHIBITS AS
22
EXHIBIT “1’, ETC.
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A true and correct copy of ______________ is attached hereto as Exhibit “1” and
24

25 incorporated herein by reference.

26 7. LIST HERE AND BELOW ANY ADDITIONAL SUPPORTING FACTS AND

27 EVIDENCE THAT SUPPORT YOUR MOTION.
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1 5. I respectfully request that the Court order a continuance of the hearing on the motion

2 for summary judgment for a period of _______ days to allow them to obtain the necessary discovery
3
in order to prepare an effective opposition to the motion for summary judgment.
4

6 Be sure to modify this to suit your individual situation. Do NOT

7
just use the wording here unless it definitely applies to your particular
8

9 situation.
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I declare under penalty of perjury under the laws of the State of California that the foregoing
11
is true and correct, and that this declaration is executed on ________________ at
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13 ______________________,California.

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_______________________________________
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PERSON SIGNING DECLARATION
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1
Superior Court of the State of California
2
For the County of _________________
3

4
Any Plaintiff, ) Case No.
5 )
Plaintiff, ) (PROPOSED) ORDER GRANTING MOTION FOR
6 ) CONTINUANCE OF HEARING ON MOTION FOR
vs. ) SUMMARY JUDGMENT OR IN THE
7 ) ALTERNATIVE FOR SUMMARY ADJUDICATION
Any Defendant, and DOES 1-5 )
8 ) DATE:
Defendants. ) TIME:
9 ) DEPT:
)
10 )
)
11 )

12

13 The motion for a continuance of the hearing on _______________________motion for

14
summary judgment or in the alternative summary adjudication presently scheduled for hearing on
15
______________ for a period of _______ days to allow _____________ to obtain the necessary
16

17
discovery in order to prepare an effective opposition to the motion for summary judgment or in the

18 alternative summary adjudication came on regularly for hearing on ______________________, the

19 Honorable ________________________, presiding.

20
________________________________________________, appeared for Plaintiffs
21
_____________________________, appeared for Defendants.
22
After full consideration of the evidence submitted by the parties, it appears and the court
23

24 determines that _______ has shown good cause for a continuance in that they have shown that

25 essential evidence may exist but cannot be presented in time for the presently scheduled hearing, for
26
the following reason(s): STATE HERE THE REASONS SUCH AS: ESSENTIAL EVIDENCE
27
MAY EXIST BUT CANNOT BE PRESENTED AT THIS TIME IN THAT THE PARTY
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1 SEEKING SUMMARY JUDGMENT HAS SUBMITTED THE DECLARATION OF A

2 WITNESS THAT CONTAINS CRITICAL FACTS THAT WERE NOT PREVIOUSLY

3
DISCLOSED TO THE RESPONDING PARTY WHO IS THUS ENTITLED TO TAKE THE
4
DEPOSITION OF THE WITNESS.
5
IT IS HEREBY ORDERED THAT, the motion for summary judgment or in the alternative
6

7 summary adjudication presently scheduled for hearing on ______________ is continued for a period

8 of ___ days to allow _____________ to obtain the necessary discovery in order to prepare an
9
effective opposition to the motion for summary judgment or in the alternative summary adjudication.
10
IT IS HEREBY FURTHER ORDERED THAT, the continued hearing date for the motion for
11
summary judgment or in the alternative summary adjudication shall be _____________________, at
12

13 ________, or as soon after that as the matter can be heard, in Dept. _______of the above-entitled

14 Court located at
15
____________________________________________, and that ______________ shall file and serve
16
their opposition to the motion for summary judgment or in the alternative summary adjudication on
17
or before ________________________ and _________________ shall file and serve their reply to
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19 the opposition to the motion for summary judgment or in the alternative summary adjudication on or

20 before ________________________.
21

22 Dated: ________________ ___________________________________________________

JUDGE/COMMISSIONER OF THE SUPERIOR COURT
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