Filed 9/30/26 Abillar v. Dignity Community Care CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
ALBERTO ABILLAR, C103568
Plaintiff and Appellant,
(Super. Ct. No.
v. 34202000277666CUMMGDS )
DIGNITY COMMUNITY CARE,
Defendant and Respondent.
Plaintiff Alberto Abillar appeals from a judgment in favor of defendant Dignity
Community Care, doing business as Methodist Hospital (hospital), after the trial court
denied Abillar’s sixth continuance request and granted hospital’s summary judgment
motion.
Abillar contends the trial court erred in denying his continuance request because:
(1) his counsel’s declaration and opposition papers, taken together, established good
cause for a continuance; and (2) the trial court applied the wrong legal standard.
We disagree and affirm. Undesignated statutory references are to the Code of
Civil Procedure.
FACTUAL AND PROCEDURAL BACKGROUND
After Abillar’s late wife Edith Abillar (wife) was admitted to hospital, Abillar
found her unresponsive in her hospital room and she passed away several days later.
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Abillar sued hospital in March 2020 for medical negligence and wrongful death
individually and as wife’s successor-in-interest.
Hospital filed a motion for summary judgment in January 2023 with an April 2023
hearing date and a June 2023 trial date. The accompanying expert declaration cited notes
from wife’s treating physicians Dr. Hossein Hayat and Dr. Kim Le.
In March 2023, Abillar requested a continuance under section 437c, subdivision
(h) in his opposition to the summary judgment motion (the March 2023 opposition),
alleging he needed to take the depositions of Nurse John Niedermair and Dr. Hayat,
among others. Abillar contended Nurse Niedermair and Dr. Hayat would be able to
testify as to “their knowledge of the events leading up to, during and after [wife] was
found unresponsive by her family.” The trial court granted this request with no objection
from hospital. Since then, hospital stipulated to, and the trial court granted, four more
continuances of the summary judgment motion hearing Abillar requested so he could
have additional time to complete depositions. The hearing was ultimately set for
January 8, 2025. In April 2023, hospital also agreed to Abillar’s request to continue trial
due to his counsel’s scheduling conflicts, moving the trial date from June 13, 2023 to
March 17, 2025.
On December 24, 2024, Abillar filed his opposition to the motion for summary
judgment (December 2024 opposition). He again requested a continuance under section
437c, subdivision (h) based on the need to depose Dr. Hayat, Dr. Kim Le, and Nurse
Niedermair. The opposition repeated that their testimony would “disclose evidence
relating to the events leading up to, during and after [wife] was found unresponsive in her
room” and claimed the doctors’ notes provided different opinions than hospital’s expert.
Abillar’s counsel declared it “was just recently disclosed on September 18, 2024” that
“[Nurse Niedermair] no longer works at the hospital and cannot be located by [hospital].”
She attached to her declaration hospital’s expert declaration filed in January 2023 but did
not otherwise explain the need to depose Dr. Hayat and Dr. Le. Counsel for hospital
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attached to his declaration an objection to Abillar’s notice of taking deposition where
hospital stated it no longer employed Nurse Niedermair and did not know his address.
The proof of service shows the objection was served on Abillar’s counsel in December
2023.
The trial court denied Abillar’s request for a continuance of the summary
judgment motion hearing. In reviewing the controlling legal authorities, the trial court
noted section 437c, subdivision (h) “ ‘mandates a continuance of a summary judgment
hearing upon a good faith showing by affidavit that a continuance is needed to obtain
facts essential to justify opposition to the motion.’ [Citation.] The affiant need not show
evidence does exist, only that it may.” It went on to summarize the holding in Bahl v.
Bank of America (2001) 89 Cal.App.4th 389 (Bahl): “If a party requesting a continuance
submits an affidavit demonstrating that facts essential to justify opposition exist, the
court’s discretion to deny a continuance because that party was not diligent in
discovering the facts earlier is ‘strictly limited.’ ” Applying these principles, the trial
court decided it “need not delve into [Abillar’s] diligence or lack there[of] because the
affidavit submitted in support of the continuance request completely fails to establish that
facts essential to justify opposition exist.”
The trial court also granted hospital’s motion for summary judgment and entered
judgment in favor of hospital. It found hospital’s evidence established that it provided
reasonable care to wife, and Abillar could not meet his burden because he failed to
oppose the substance of the motion.
Abillar timely appeals.
DISCUSSION
I. Good Cause
Abillar contends the trial court erred in denying his continuance request because
the opposition and his counsel’s declaration, taken together, established good cause for
the continuance. We disagree.
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“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, be presented, the court shall deny the motion, order a continuance to permit
affidavits to be obtained or discovery to be had, or make any other order as may be just.”
(§ 437c, subd. (h).) But continuance is not mandatory “when no affidavit is submitted or
when the submitted affidavit fails to make the necessary showing under section 437c,
subdivision (h).” (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 254 (Cooksey).)
“Even absent a sufficient declaration, ‘the court must determine whether the party
requesting the continuance has nonetheless established good cause therefor.’ ”
(Chavez v. 24 Hour Fitness USA, Inc. (2015) 238 Cal.App.4th 632, 643 (Chavez).)
“[A]n 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.” (Chavez, supra,
238 Cal.App.4th at p. 643.) “We agree with the majority of courts holding that lack of
diligence may be a ground for denying a request for a continuance of a summary
judgment motion hearing. Although the statute does not expressly mention diligence, it
does require a party seeking a continuance to declare why ‘facts essential to justify
opposition … cannot, for reasons stated, then be presented’ ([former] § 437c, subd. (h),
italics added), and courts have long required such declarations to be made in good faith.”
(Cooksey, supra, 123 Cal.App.4th at p. 257.)1 “A good faith showing that further
discovery is needed to oppose summary judgment requires some justification for why
1 In 2017, the Legislature removed the word “then” from “then be presented” in section
437c, subdivision (h). (Sen. Bill No. 1171 (2015-2016 Reg. Sess.) § 22.) This was part
of the Legislature’s annual code maintenance that “identifies grammatical errors and
other errors of a technical nature that have been inadvertently enacted into statutory law”
and the change “may not affect … substantive law.” (Sen. Com. on Judiciary, com. on
Sen. Bill No. 1171 (2015-2016) Reg. Sess.) Feb. 18, 2016, p. 1.)
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such discovery could not have been completed sooner.” (Ibid.; accord, Braganza v.
Albertson’s LLC (2021) 67 Cal.App.5th 144, 156.)
As such, in deciding whether to continue a summary judgment motion hearing to
permit additional discovery, the trial court considers various factors including: “(1) how
long the case has been pending; (2) how long the requesting party had to oppose the
motion; (3) whether the continuance motion could have been made earlier; (4) the
proximity of the trial date or the 30-day discovery cutoff before trial; (5) any prior
continuances for the same reason; and (6) the question whether the evidence sought is
truly essential to the motion.” (Chavez, supra, 238 Cal.App.4th at p. 644.)
We review a trial court’s decision whether to grant a continuance under section
437c, subdivision (h) for abuse of discretion. (Chavez, supra, 238 Cal.App.4th at p. 640.)
Here, the trial court acted within its discretion. Abillar’s December 2024
opposition claimed a continuance was necessary for him to depose Dr. Hayat, Dr. Le, and
Nurse Niedermair. But Abillar already said he needed to depose Dr. Hayat and Nurse
Niedermair in the March 2023 opposition. He provided no explanation as to why he
could not depose Dr. Hayat sooner. And while Abillar’s counsel alleged she discovered
that hospital could not locate Nurse Niedermair in September 2024, the record shows she
received this information in December 2023. Abillar also added Dr. Le as a new
potential witness in the December 2024 opposition, but the expert declaration citing Dr.
Le’s notes was filed along with the motion for summary judgment in January 2023.
Abillar fails to explain why he waited almost two years to consider deposing Dr. Le.
Moreover, this action has been pending since March 2020. Before the December
2024 opposition, the trial court had granted five continuances that Abillar had requested,
allowing him to conduct depositions and postponing the summary judgment motion
hearing from March 2023 to January 8, 2025. The trial date was also rescheduled from
June 13, 2023 to March 17, 2025. Under these circumstances, we conclude the trial court
acted within its discretion to deny Abillar’s continuance request.
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Abillar cites Bahl to support his contention that the lack of diligence cannot be a
ground to deny continuance under section 437c, subdivision (h). Bahl “questions
whether diligence alone should make or break a continuance request” because “[t]he
issue of discovery diligence is not mentioned in section 437c, subdivision (h), which
raises obvious doubts about its relevance.” (Bahl, supra, 89 Cal.App.4th at p. 398.) But
as Cooksey points out, the statute and case law require the party seeking a continuance to
provide a good faith declaration as to why essential facts cannot be presented. (Cooksey,
supra, 123 Cal.App.4th at p. 257.) “An inappropriate delay in seeking to obtain the
facts” is not “a valid reason why the facts cannot … be presented.” (Ibid.; accord,
Chavez, supra, 238 Cal.App.4th at p. 644 [the requesting party’s lack of diligence is
relevant to the continuance inquiry].) And by allowing the court to “make any other
order as may be just,” the statute “plainly contemplates an exercise of discretion,
presumably to be informed by the kind of factors traditionally considered in such
contexts, including the requesting party’s diligence or lack thereof.” (Rodriguez v. Oto
(2013) 212 Cal.App.4th 1020, 1038, fn. 7.)
Having reached this conclusion, we need not decide whether the trial court erred in
denying the continuance for lack of a sufficient declaration. (Myers v. Raley’s (2019)
32 Cal.App.5th 1239, 1251 [under ordinary appellate review, we do not address the trial
court’s reasoning and consider only whether the result was correct].)
II. Whether the Trial Court Applied the Wrong Legal Standard
Abillar contends the trial court applied the wrong legal standard for granting a
continuance by requiring him to prove facts essential to justify opposition “exist[]”
instead of “may exist” as stated in section 437c, subdivision (h). We disagree.
As an initial matter, we may disregard this contention because it is only raised in
the introduction and standard of review sections of Abillar’s opening brief. The legal
argument section of his opening brief consists of only the argument on good cause.
“[O]n review of a grant of summary judgment, we may disregard assertions or
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contentions not raised in a properly headed argument.” (Dinslage v. City and County of
San Francisco (2016) 5 Cal.App.5th 368, 377, fn. 3.)
In any event, Abillar’s contention is meritless. A trial court abuses its discretion
when it applies the wrong legal standard applicable to the issue at hand. (Zurich
American Ins. Co. v. Superior Court (2007) 155 Cal.App.4th 1485, 1493.) Here, the trial
court wrote “[t]he affiant need not show evidence does exist, only that it may”
immediately after summarizing the affidavit requirement in section 437c, subdivision (h).
While it omitted the “may” in its summary of Bahl and in its finding, reading the ruling
as a whole, we conclude the trial court understood the “may exist” standard under section
437c, subdivision (h) and correctly applied that standard in its finding. (See Bennett v.
McCall (1993) 19 Cal.App.4th 122, 127 [in the absence of a contrary showing in the
record, all presumptions in favor of the trial court’s action will be made by the appellate
court].)
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DISPOSITION
The judgment is affirmed. Hospital shall recover costs on appeal. (Cal. Rules of
Court, rule 8.278(a)(1), (2).)
/s/
MESIWALA, J.
We concur:
/s/
RENNER, Acting P. J.
/s/
WISEMAN, J.*
* Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by
the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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