Soka University of America Is a School On a Hill

The Aliso Viejo college was founded by a Buddhist sect that preaches peace—so why are so many former professors alleging the opposite?

Soka University of America Is a School On a Hill

* This article was altered on March 12.

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Anyone who has ever visited Aliso Viejo knows about gates. Gates separate residential communities from one another. Gates demarcate front yards from back yards and keep pools and tennis courts for the use of those who have the access key. It's a careful study in suburban paranoia, one befitting Orange County's youngest city, and one designed to keep the rest of the world away.

There are guard gates at the entrance to Soka University of America (SUA), a small liberal-arts school perched on a coastal ridge near Aliso and Wood Canyons Regional Park. But for visitors who drive up the wide, curving, tract-home-lined roads of the San Joaquin Hills to visit, the gates cannot hold back the gorgeous view behind them: an unexpected oasis, a seeming mirage of serenity and grandeur in a Stepford town. A water fountain jumps high from a vast, shining turquoise lake in front of the administration building, a soaring, Italian Renaissance-inspired structure built with the same type of stone used for the Roman Colosseum because its founder plans to have the university last 2,000 years.

Walking through the ivy-covered colonnades, where handblown, tulip-shaped lamps hang from above, the scene looks more like a Zen meditation retreat than a college campus on a Thursday afternoon. Two students sit cross-legged in a quiet courtyard, their class notes next to the babbling lily ponds. A bronze statue of Gandhi stands with open arms in a patch of orange groves. Tacked to a cork bulletin board are the words of Eleanor Roosevelt: "All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act toward one another in a spirit of brotherhood."

College guidebooks don't have much to say about Soka, and it remains a mystery even in Orange County academic circles. It's not as old as Chapman University, not as teeming with students as Cal State Fullerton or UC Irvine, not as hidden as Concordia, or as visible as Vanguard. But the school—founded 10 years ago "upon the Buddhist principals of peace, human rights and the sanctity of life," according to its glossy pamphlets—boasts an impressive list of offerings: a nine-to-one student-faculty ratio. Free tuition for students whose family income is $60,000 or less. A global outlook—studying abroad is a requirement for graduation. A new $73 million performing-arts center sound-engineered by the acoustician for the Walt Disney Concert Hall. A cafeteria—or, rather, "bistro"—dishing out daily specials such as spicy kimchi pork bowls and chicken cordon bleu. An athenaeum. An art gallery. An Olympic-sized swimming pool. Plus, 3,400 Internet ports.

Gaye Christoffersen, a worldly academic with a pages-long list of works on Asia-Pacific international relations to her name, felt an instant connection with Soka when she interviewed for a teaching position in 2005 after seeing a job posting in The Chronicle of Higher Education. Contracts were signed, and the 65-year-old relocated from Northern California to become a professor of political science at the school.

"Who wouldn't want to be at a university with a Buddhist peace movement?" she asks from outside a coffee shop in Santa Ana, near Orange County Superior Court. "I thought, 'This is a beautiful campus in Orange County, in America.' How could things be so weird and terrible?"

She makes reference to an e-mail sent in 2002 by Alfred Balitzer, then-dean of Soka University, to a colleague, "SUA will always have two faces and two kinds of faculty," he wrote, "and that is why we as SUA top administrators have to carefully care for the Gakkai members as they are being swamped by non-Gakkai faculty."

The document and others are tucked in Christoffersen's court files, submitted as evidence to a judge. The former Soka professor is suing the university for religious discrimination, claiming she was denied tenure because she refused to abandon her Lutheran faith to join the Soka Gakkai Buddhist sect that founded the university.

"It was a constant pressure," Christoffersen says, staring austerely through rectangular, rimless sunglasses while describing the aggressive proselytizing she says was practiced by both faculty members and students in her classes affiliated with Soka Gakkai on campus. "They're constantly after you, constantly trying to get you. You can't escape."

Christoffersen is one in a lengthening chain of faculty members and students who say they were deceived by the university's nonsectarian status and promotion of "free and open dialogue" and left. They're "Soka refugees," as former psychology professor Jeffrey Green puts it.

Many of those who've left—some by choice, others escorted by security—say that university decisions are made behind locked doors by a group of top administrators whose mission isn't the pursuit of academic excellence, but rather to extol Daisaku Ikeda, president of Soka Gakkai International, the wealthy religious organization that finances the $300 million institution. A culture of paranoia rules the campus, dissidents claim, with jobs always teetering on the line based on whether professors are Soka Gakkai or not.

"We started asking if this is a religious institution or the institution we were promised," says Green, now a professor at Virginia Commonwealth University. "It's sort of ironic that they are a group for peace, but essentially, they declare war on anyone who raises a question."

*     *     *

Soka Gakkai (literally, to "create value") is a lay Buddhist organization founded in 1930 as an educational movement under the teachings of Nichiren, a 13th-century monk. The emphasis eventually narrowed to the need for "human revolution," with the belief that if society members reached their full individual potential, the greater community would prosper. The most direct route to personal enlightenment was by chanting the Lotus Sutra, "Nam-myoho-renge-kyo," which roughly translates to "I devote myself to the mystic law of cause and effect."

During Japan's postwar development, Soka Gakkai rose to unassailable dominance, becoming the Asian nation's largest religious organization. Ikeda took the helm in 1960, and he started a global network, Soka Gakkai International (SGI), in 1975. Throughout his reign, the business tycoon remained one of Japan's most enigmatic figures—and his interaction with the Western media was nearly nonexistent. In a rare interview he granted to the Los Angeles Times in 1996, journalist Teresa Watanabe wrote that Ikeda "has been condemned and praised as a devil and an angel, a Hitler and a Gandhi, a despot and a democrat." He called himself "the anti-authority" and once told a Japanese reporter, "I am the king of Japan; I am its president; I am the master of its spiritual life; I am the supreme power who entirely directs its intellectual culture."

Twenty years ago, the Nichiren Shoshu priesthood (from which Soka Gakkai originated) excommunicated Ikeda, saying that his movement's teachings deviated from orthodoxy. Members have been accused of aggressive proselytizing, violence against those who try to leave the group and blind reverence of their leader. In his new book on organized crime in Japan, The Last Yakuza: A Lifetime in the Japanese Underworld, investigative reporter Jake Adelstein writes that the group has used the Goto-gumi, a notorious yakuza mafia group, to "keep its party strong and squelch dissent." The organization emphatically rejects all accusations.

Today, SGI claims more than 12 million members in 192 countries, as well as tens of billions in assets. It owns newspapers, television and radio stations, art museums, primary and secondary schools, and a university in Japan. There are 100 SGI centers in the United States for practice and study, including one in Santa Ana and a handful in Los Angeles County. Tina Turner is a famous follower, as are Orlando Bloom, Kate Bosworth, Herbie Hancock and Mariane Pearl (widow of murdered Wall Street Journal reporter Daniel Pearl).

David W. Machacek, a Ventura-based human-rights activist and the co-author of Soka Gakkai In America: Accommodation and Conversion, says that while the organization may have a rocky history, it has matured to become a Buddhist sect actively trying to change the world. He calls its message-spreading methods "gentle."

"Any evangelical church in America is more aggressive in proselytizing than Soka, which emphasizes recruitment though friendship and professional networks," Machacek says. "The focus is on the personal practice of Buddhism in your everyday life."

It was under those gentle auspices that the sect's leadership decided to open Soka University of America as a graduate school in Calabasas in 1987. But plans to expand with an undergraduate campus were shut down by environmentalists who wanted to protect the city's open spaces and a Native American ancestral site on property lines. Unfazed, the university migrated south to Aliso Viejo, purchasing 103 acres of rough-graded land from Orange County for $25 million.

The new school—the first private liberal-arts college built in California in 25 years—opened its gates in 2001 to 120 students from 17 states and 19 foreign countries, nearly all of whom learned of Soka from their local SGI centers. Excitement followed, both abroad and around town—Aliso Viejo's then-mayor Carmen Vali believed the fledging suburban city would flourish with a university campus, just as Palo Alto developed around her alma mater, Stanford. "People accuse Orange County of being devoid of culture, and this is something that is definitely going to fly in the face of that concept," she told The New York Times. Soka quickly made an academic splash, with a first-rate library built to house 225,000 volumes, notable hires including best-selling author Joe McGinniss, and a humanistic curriculum focusing on multicultural studies and international relations.

While leading a tour of the campus, Soka spokesperson Wendy Harder recalls the first class. "These were students who were brave enough to take a chance," she says, adding that by the time they graduated, the school had received official accreditation by the Western Association of Schools and Colleges. "They were really coming in with a great deal of faith."

The school's egalitarian principles are showcased throughout the master-planned educational community, which is just more than half-completed. All offices, from the dean's to the janitor's, are the same size. There are no faculty ranks (everyone who teaches is a professor) and no reserved parking spots for managers or higher-ups. Students address the president of the school—Daniel Habuki—as "Danny." With a current student population of 438, the tiny classes are run like graduate seminars, emphasizing "dialogue-based learning."

While Ikeda, the 83-year-old founder of the university, has never visited his U.S. campus, not even for its dedication, his presence is unavoidable. His books are displayed neatly in glass cases at the entrance of the library; his portrait hovers over students in the cherry-wood reading room. A VIP guest house awaits him, should the aging sensei ever decide to stop by. Yet the school downplays its ties to SGI, saying it's not as spiritually fueled as other campuses affiliated with Christian denominations such as Brigham Young University, Notre Dame or even Pepperdine.

"Most liberal-arts colleges are founded on a religion," says Harder, a Lutheran. "This university, from Day One, has been open to everyone. If you wanna study Buddhism, you gotta go somewhere else."

Akiko Tomita, 22, a senior studying international relations, agrees. "The [religious] aspect is not emphasized on the education side," she says, sitting in a campus corridor. "It's big only if you're part of it. A lot of my friends here are atheist or Christian."

As for the percentage of SGI members on campus, Harder shrugs. "You know, we don't ask. On applications, we don't ask about religion, disabilities, one's ability to pay. Our first student body president was a Catholic from the Philippines.

"Soka University was founded upon the principles of peace, human rights and the sanctity of life," she reemphasizes. "Those happen to be my values, too."

*     *     *

For many academics, it was the allure of being a founding member of a new university that drew them to Soka. Anne Houtman moved from Illinois to join the school's biology department. In 2001, she told The New York Times, "You don't get to start up new liberal-arts colleges. It just isn't done. The idea of being able to start from scratch and say, 'What is it that a global citizen should know about science?' was just incredible.''

But some faculty members quickly became suspicious. Students, they say, would always talk about their "life mentor," referring to Ikeda. They'd spend their days reading his speeches and chanting the Lotus Sutra in the lounge areas. The campus museum featured an exhibit titled "Gandhi, King, and Ikeda." Administrators started calling the university a "hybrid" institution.

One professor who asked to remain anonymous alleges that in the school's first year of operation, students told him of a sexual assault that had happened on campus. The victim went to administrators, who urged her not to say anything. "The excuses they gave were medieval," the professor states. "They said they were going to protect her reputation. It was horrifying to me."

Several Soka staffers walked out or were dismissed in the first few years of the school's opening. When McGinniss (whose next book, The Rogue: Searching for the Real Sarah Palin, comes out this year) was told his contract would not be renewed for a second year, he claimed it was due to his non-Buddhist beliefs. About 20 student supporters camped out on a lawn in protest.

One of those students was Murphy McMahon, who left the school after the incident. Now 29 and working as a translator in Brazil, he wrote via e-mail, "The university was handled like a prerogative of its parent organization, as if the purpose of its existence was the aggrandizement of Daisaku Ikeda. That was manifest constantly everywhere: the reading lists, the special events, the student clubs and activities, the buildings, the museum exhibits, and then in faculty politics and hiring, where not loving Ikeda enough proved an occupational hazard."

Houtman left not long after becoming the assistant dean of faculty. She declined to comment, but she told Australia's Radio National Network in 2003 that she became concerned when the faculty—"really fantastic faculty, lots of experience, really collegial people"—would spend "days and days making decisions" that eventually "would be overturned by an administration that had no experience in academic administration at all."

In 2002—just a year after Soka's opening—Linda Southwell, a terminated fine-arts professor, sued the school for $25 million, alleging religious discrimination, wrongful termination and fraud, among other charges. A complaint filed claimed, "The curriculum is intended to reflect cult beliefs and perspectives." While the university discounted the charges, she came to a settlement, which included a confidentiality clause.

In 2005, Holly Ogren, a professor of Japanese language and culture, also sued Soka in Orange County Superior Court for religious discrimination, alleging she was "severely mistreated, degraded and berated" and "ultimately terminated for being a Hare Krishna, an alternative Buddhist sect." (Contrary to what was stated in that court document, the Hare Krishna movement is actually Hindu.) The case was dismissed in 2006.

One anonymous professor wrote in an e-mail that many faculty members are afraid to come forward with their stories because SGI is "extraordinarily vigilant and nasty regarding any perceived threats to their reputation. They have armies of lawyers and PR people, and they use them. One fellow ex-faculty member was actually tracked down in Mexico by a Soka Gakkai member and asked if he had been accurately quoted in an article; he said yes."

Soka University denies all charges of religious favoritism. "We give absolutely no preferential treatment based on religion," says Edward Feasel, the current dean of faculty. Feasel was also involved in a recent, bizarre episode that had Soka filing a restraining order against one of its own.

In May 2010, political-science professor Orin Kirshner was teaching from Hannah Arendt's Eichmann In Jerusalem in a unit on the Holocaust when he noticed that one of his students continually brought an SS Nazi soldier action figure to class. This particular student, he says, had the doll for years and was known to carry it around campus.

The Jewish Kirshner was very concerned. He e-mailed Feasel claiming anti-Semitism and religious intolerance and demanded something be done about the student.

To Kirshner's surprise, "The dean basically said to me, it's almost summer, the student will be leaving, so it'd be better if I kept my mouth shut." Feasel then told him he was moving the issue to be handled by the department of human resources. The head of the department, Katherine King, responded with an e-mail arranging a meeting about the incident. The letter said this was the first time they had heard of the offending student, a claim, Kirshner says, that was just more stonewalling.

"It was clear that the administration was not going to take this seriously," he says. "They were turning a blind eye to racism, anti-Semitism and various forms of religious intolerance. I'm not saying [the student's actions were] malicious, but nothing was being done about it."

Kirshner asked if he could bring a witness to the meeting—either another faculty member or a lawyer—or a tape recorder; administrators denied his request. He began to suspect a cover-up was taking place, and a series of e-mails later, Kirshner told administrators that he was going to take the issue up with the Board of Trustees.

A few days later, he was locked out of his office. A security guard handed him a letter saying he was no longer welcome on the Soka campus and that he had 48 hours to receive psychological counseling. "Everything was in my office, all of my work—I was on the verge of signing a contract for my new book," Kirshner says. "That got destroyed. I was in the process of putting together a conference paper. That got destroyed."

In defiance, he decided to sit outside his office door and go on a hunger strike. When Kirshner refused to see a counselor hand-selected by the university, he was put on administrative leave without pay, meaning he was technically still employed and therefore could not seek unemployment, yet he would collect no income. Later that summer, he received a two-page letter that listed numerous accusations from "colleagues," ranging from threatening the president of the university to vowing harm on staff if he didn't receive tenure to even seeking out drugs.

"My guess is that the administration got very upset that I had said I was going to go to the Board of Trustees, so they then looked for, fished around for any kind of behavior, incident or anything they can construe as bad behavior," Kirshner says.

Soka kept Kirshner on administrative leave from May until October, when he received an e-mail from administrators saying he could either resign or face a disciplinary committee to respond to the bill of particulars. Instead, on Nov. 8, 2010, he sent an e-mail to King, Habuki, Feasel and others promising "VERY serious TROUBLE (and then some)" and warning them to "please remember to lock your doors. You never know when a wild animal might try to paw its way through." Attached was a photo of a graveyard of skulls. He also left King a similarly threatening voice-mail message. All four administrators filed a restraining order against Kirshner; he is to stay 100 yards from their houses and any portion of the Soka University campus until 2013.

"It was definitely over the top," Kirchner admits about his threats. "I was definitely in a space of being hotheaded. Four to five months with no income created quite a lot of angst in me. But it was all tongue-in-cheek. There was no intention, none at all."

Kirshner, who was named Professor of the Year twice in a row, calls Soka "the jewel in the crown of SGI," used to reel in hundreds of millions of dollars from donors. As for his own case, he says, "It was all about isolating, cornering and destroying anyone who might raise a substantive issue that might tarnish the image of the university or SGI. When they saw that I was serious about my claims of anti-Semitism and religious intolerance, they thought the only way they were going to silence me was by doing something like this. There was no flexibility, zero. There was no dialogue for a school that's known for 'dialogue.'"

Asked about Kirshner, Feasal says he "cannot comment on personnel matters."

*     *     *

According to documents filed in Orange County Superior Court, Christoffersen entered into a five-year employment contract with Soka University in 2005 with the promise of speeded-up tenure. She applied for tenure in June 2007 and received the further recommendation of the university's Rank and Tenure Committee in February 2008. The committee noted her many accomplishments, including being a "recognized scholar in her fields of expertise" and "publishing regularly over many years in top-quality peer-refereed journals," as well as pointing out that her scholarship is "of a quality usually associated with an established scholar at a major research university."

Then came the e-mails.

Christoffersen says top administrators sent her weekly invites insisting that she attend an Ikeda reading. A month before a decision was to be made about her tenure, the chairwoman of the committee urged her to attend a Soka Gakkai women's meeting. With the future of her career on the line, she drove to the event, but at the last minute, she decided against going in. The chairwoman later told Christoffersen, according to court files, that she was "disappointed with her lack of participation in Soka Gakkai." Another member of the tenure committee, Anthony Mazeroll, told Christoffersen, "Everyone who works here is a member of Soka Gakkai—every administrative person, every IT person, everybody." The assistant dean, Phat Vu, declared in front of several faculty members his intention to "purify" Soka University of all non-Soka Gakkai so that eventually only Soka Gakkai faculty would teach there, according to the complaint.

In March 2008, Soka denied Christoffersen tenure "due to low student evaluations, which showed a deficiency in teaching ability." Other professors with fewer achievements were granted tenure, she claims. She is also suing for age discrimination, claiming the then-dean of faculty, Michael Hays, said to her, "At your age, five years is enough."

She filed the complaint on May 22, 2008, and on Sept. 29, 2009, the court granted a motion for summary judgment by the defendant, Soka University, as not enough facts had been collected. Christoffersen appealed, and the case has reached a California appellate court. It's in limbo, as she lost her lawyer, Brian Glicker (he was charged with failing to maintain client funds in a trust account, among other things, and deemed ineligible to practice law, according to State Bar of California records). She recently applied to be represented by the ACLU.

In Christoffersen's court files are other campus documents that she believes prove Soka University's hidden motives, including a 2002 e-mail from then-dean Alfred Balitzer. "We must insure that the people we hire understand the mission of our university, and it is especially up to us to make judgments about their potential dedication to it," he wrote. "Let us not indulge language that states we are a non-sectarian institution or that Soka Gakkai is so far in the background that we never think about it or it never comes to mind."

Another document is notes from Soka's long-term-planning committee meeting, dated Jan. 28, 1998, during the time the university was being established:

If we overtly call ourselves a Buddhist University, we will likely create a poor image for ourselves in the United States, where people have little experience with or knowledge of Buddhism. Consequently, we will be perceived as "not mainstream" or "not a normal place to send my children to." On the other hand, the very clear reality is that we are completely funded by a Buddhist group; most of our staff and faculty will be Buddhist; and we state that we are "founded on the Buddhist principles of . . ." Therefore, an attempt to hide our Buddhist roots will be seen as secretive and cultish. We need to be somewhere in between depending upon the specific questions being answered.

Back then, the resolution of the committee was to declare Soka a Buddhist university in legal documents to permit the school to "selectively hire Soka Gakkai members without risking legal action for discrimination," according to their notes. The university then agreed to give the impression that it was "open, but middle-of-the-road" in public-relations material such as the mission statement and advertisements in efforts to gain students.

Christoffersen, whose contract ended last year, believes that non-Gakkai faculty members such as herself are hired for legal purposes and to raise the academic stature of the institution, and then "picked off one by one."

"I gave them some credibility they didn't have," she says.

Asked to comment on the claims made by Christoffersen, Feasal said, "We do not discuss personnel matters."

Looking back, Christoffersen says, every day, non-Gakkai students and faculty were hit by "shakubuku," a Soka Gakkai precept that means to "shake and subdue." It's what Nichiren Buddhists call the process of proselytizing and converting non-believers. Of allegations of it happening on campus, Feasel says, "I haven't seen it. I don't think it's true, and it's certainly not something we would condone."

Christoffersen believes otherwise. "The cult frenzy is very crazy, very Orwellian," she says. "I wish they would be as attractive on the inside as they are on the outside."

This article appeared in print as "The School On a Hill: Soka University in Aliso Viejo was founded by a Buddhist sect that preaches peace—so why are so many former professors alleging the school practices the opposite?"


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478 comments
Roo
Roo

I bet half of you who commented haven't even read the literature to which this article refers. City Upon A Hill actually has much in common with the sentiments you faithful students exude. Why dont you try reading it.

figure it out
figure it out

All these aggressive sua student comments come off arrogant and are supporting the following argument: "It's sort of ironic that they are a group for peace, but essentially, they declare war on anyone who raises a question."

Instead of asking themselves the truth, they immediately went searching for an argument that could compete with the article's stance. Do you really know the truth? Or are you just content to feel that you are part of something you don't really understand?

Stephanie
Stephanie

it is really sad and obvious that these students immediately tried to think of every way they could argue against this article. It is as if every single student rushed to their laptops to write a comment declaring their allegiance with the school. I really doubt that they even considered the possibility that they could be wrong. You have to realize, when you are practicing with this religious group, you are reading books much like the bible which state in abstract forms that you must not give up your adherence to the laws of "kosen rufu," which stands for world peace. Of course there are good intentions but if you are practicing day by day, reading these excerpts every morning, you become a bit carried away from reality. All of a sudden it's as if you are not you unless you are praising this founder called Daisaku Ikeda. You are not you unless you are chanting every morning and evening. The purpose of the practice is to make you feel that you can not live without it. So obviously they are going to defend this school with all their heart.

Stephanie
Stephanie

it is really sad and obvious that these students immediately tried to think of every way they could argue against this article. It is as if every single student rushed to their laptops to write a comment declaring their allegiance with the school. I really doubt that they even considered the possibility that they could be wrong. You have to realize, when you are practicing with this religious group, you are reading books much like the bible which state in abstract forms that you must not give up your adherence to the laws of "kosen rufu," which stands for world peace. Of course there are good intentions but if you are practicing day by day, reading these excerpts every morning, you become a bit carried away from reality. All of a sudden it's as if you are not you unless you are praising this founder called Daisaku Ikeda. You are not you unless you are chanting every morning and evening. The purpose of the practice is to make you feel that you can not live without it. So obviously they are going to defend this school with all their heart.

Dave
Dave

Pretty worthless article when you consider the "dean" mentioned (Ex- Dean of Faculty) was terminated from that position in 2003 for making inappropriate comments about religion (like the ones quoted here) and the courts deemed the arguments of this disgruntled, non-notable professor to be unconvincing. If Gaye had talent, she would land on her feet at another school instead of going for a payday against her former employer on inept charges. The ex-prof proved to be a toxic hire and I would never want to hire that kind of faculty member. Sometimes bad profs are just bad profs. Soka needs to be creative to hire faculty and isnt going to get tier one talent--some just don't work out. If it weren't for the PhDs involved this could easily be a fake-discrimination suit at a Taco Bell.

Andrea Cross Isrow
Andrea Cross Isrow

There are people who "take it too far" in every religion, unfortunately. With the best of intentions many SGI members will shakabuku continuously. Personally, I've been a member of SGI for 6 years, and have had no adverse experiences, but yes, there are a few members who are just a tad too zealous, but like I said -- you get that everywhere. Similarly you will have people who get "shakabukued" two or three times and whoooaaaa, it's a "cult"!!!! How about a firm: "No, thank you. I'm _____ (athiest, Christian, etc)"? People can be ridiculous on BOTH sides of this coin. And, as an aside, look up "cult" in the dictionary sometime. It's so vague and ambiguous it can be applied to every, and I mean EVERY religion or organization.

Illarraza
Illarraza

The Law [Dharma] is free TJ, not the Law taught by SGI but the Law taught by the Buddhas throughout past present aqnd future. Copy and paste to your hearts content!

Illarraza
Illarraza

I imagine you are very proud that SGI has won a lawsuit since their track record for winning Lawsuits, at least in Japan, is so absolutely horrible.

176 lawsuits filed between the temple and Soka Gakkai from 1991 to 2005:

The temple filed 41 Soka Gakkai filed 135 The temple won 116 Soka Gakkai won 22 38 cases reconciled [Re. Temple - Soka Gakkai trials index]

Lets do some simple math and analysis:

176 lawsuits filed minus 38 that were reconciled = 138 contested lawsuits. The temple won 116. This means that SGI, with all their "sincere" Daimoku and 50x more revenue and assets and 50x the lawyer fees of the Nichiren Shoshu, won only 16% of the lawsuits [SIXTEEN PERCENT folks] and with all the cards stacked in their favor. What we have here is: Actual proof of the ABSOLUTE POWERLESSNESS of the SGI faith and practice; and/or the incompetance of the very best and expensive lawyers money could buy; and/or SGI is cheap and hired terrible lawyers; and/or SGI hired SGI member lawyers who are terrible lawyers; and/or SGI's terrible member lawyers worked on the case for free. The bottom line is the result of LOSS not GAIN, the most important doctrine of the SOKA "Beauty, Goodness, and Gain" philosophy.

I am not a temple member but I did stay at a Holiday Inn Express last night.

Arika
Arika

I don't know, but I want to hear from the people, not thru the paper, which may be prejudiced against the school. I would like to interview all parties involved, not just believe this article because it seems fair. I know the SGI isn't perfect, but Sensei is enlightened, and I've trusted him implicitly for 28 years. He's never been wrong since I've listened to him; he wasn't always enlightened, but he has been my whole practice. If any of these incidents happened the way you believe they did, I would be pretty surprised, but not totally. There are buddhists who go to far. And btw, the NS priesthood IS incredibly corrupt! You cannot use them as proof of any gakkai misdeed! The high priest claims one can only gain enlightenment through him!! That's absolute bullshit, completely wrong, against Buddhism and Nichiren Daishonin!Arika

TJ
TJ

Source: http://en.wikipedia.org/wiki/S...

It describes its mission as the fostering of a steady stream of global citizens committed to living a contributive life—with an emphasis on principles of pacifism, human rights, and the creative coexistence of nature and humanity.[2]

Between 2005-2007 SUA graduated its first three undergraduate classes with an average graduation rate of 90%. More than a third of the students in each of the first three graduating classes have gone on to graduate school. Forty percent of the 2006 graduating class entered graduate school (compared to 20% at Claremont McKenna in the same year). Cumulatively, 38% of SUA graduates have gone on to graduate programs, according to the 2008 Peterson's Guide to Four Year Colleges (p. 2228). Students have been admitted into graduate programs at Cambridge University, Carnegie Mellon University, Columbia University, Teachers College, Duke University, Harvard University, Hawaii Law, Indiana University, London School of Economics, New York University, Oxford University, Stanford University, St. Johns, University of California, Berkeley, UC Irvine, UCLA, University of Liverpool, University of Maryland School of Law, University of Pittsburgh, University of Southern California, University of Wisconsin, Madison, Vanderbilt University, Yale University, University of Pennsylvania, and others.[16]

In September 2010, Newsweek rated Soka University in the top 25 of small US colleges in four categories, including the "most desirable small colleges."(http://education.newsweek.com/...

Justice
Justice

CHRISTOFFERSEN v. SOKA UNIVERSITY OF AMERICAGAYE CHRISTOFFERSEN, Plaintiff and Appellant,v.SOKA UNIVERSITY OF AMERICA, Defendant and Respondent.

No. G042935.

Infinitepla
Infinitepla

Gaye lost in her court filing. You can Google for court's ruling.

Infinitepla
Infinitepla

To moderator, why don't you allow me to post the court's ruling about SUA? Where is your justice?

TJ
TJ

CHRISTOFFERSEN v. SOKA UNIVERSITY OF AMERICAGAYE CHRISTOFFERSEN, Plaintiff and Appellant,v.SOKA UNIVERSITY OF AMERICA, Defendant and Respondent.

No. G042935.

Court of Appeals of California, Fourth District, Division Three.

Filed April 15, 2011.Glicker & Associates, Brian Glicker, and Maryam Atighechi; Gaye Christoffersen, in pro. per., for Plaintiff and Appellant.Musick, Peeler & Garrett, Steven D. Weinstein, David M. Lester, and Adam L. Johnson for Defendant and Respondent.

Ruling

The court granted Soka's summary judgment motion. The court explained its denial of the request for continuance in a written order as follows: "Plaintiff has failed to submit a declaration detailing what facts she intended to obtain to oppose the motion and why such evidence could not be presented at the present time. In addition, plaintiff has not demonstrated reasonable diligence in discovery. This motion was filed in April." As noted above, Christoffersen elected to proceed without a reporter's transcript; thus, we are unable to consider what might have been said at the summary judgment hearing. The court entered judgment on September 29, 2009.

Christoffersen asserts the court erred in granting summary judgment. Her sole argument is that the court should have continued the summary judgment hearing to allow her time to discover additional facts to oppose the motion.3"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, 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." (§ 437c, subd. (h), italics added.)

........

Furthermore, Christoffersen made no showing of diligence in the discovery process. Her ex parte application (filed one week before her opposition to the motion for summary judgment was due) attempted to compel the production of the "tenure packets." But Christoffersen never made a freestanding request for production of such documents under section 2031.010, and only (arguably) requested such documents in deposition notices served less than a month before her opposition to summary judgment was due. Even assuming the document requests in the deposition notices can be read to include requests for the tenure packets, Christoffersen made no effort to explain why she waited so long to seek these documents.

Given the lack of a sufficient declaration, the court's decision to deny Christoffersen's request for continuance is reviewed for an abuse of discretion. The factors identified by the court in its minute order (failure to prepare proper declaration, lack of diligence) and the rest of the record provided to us suggest the court was within its discretion. Moreover, Christoffersen's failure to provide this court with a reporter's transcript precludes a review of the trial court's comments at the hearing for an abuse of discretion. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132.)

DISPOSITION

The judgment is affirmed. Soka shall recover costs incurred on appeal.WE CONCUR:O'LEARY, ACTING P. J.FYBEL, J.

TJ
TJ

CHRISTOFFERSEN v. SOKA UNIVERSITY OF AMERICAGAYE CHRISTOFFERSEN, Plaintiff and Appellant,v.SOKA UNIVERSITY OF AMERICA, Defendant and Respondent.

No. G042935.

Court of Appeals of California, Fourth District, Division Three.

Filed April 15, 2011.Glicker & Associates, Brian Glicker, and Maryam Atighechi; Gaye Christoffersen, in pro. per., for Plaintiff and Appellant.Musick, Peeler & Garrett, Steven D. Weinstein, David M. Lester, and Adam L. Johnson for Defendant and Respondent.

Ruling

The court granted Soka's summary judgment motion. The court explained its denial of the request for continuance in a written order as follows: "Plaintiff has failed to submit a declaration detailing what facts she intended to obtain to oppose the motion and why such evidence could not be presented at the present time. In addition, plaintiff has not demonstrated reasonable diligence in discovery. This motion was filed in April." As noted above, Christoffersen elected to proceed without a reporter's transcript; thus, we are unable to consider what might have been said at the summary judgment hearing. The court entered judgment on September 29, 2009.

Christoffersen asserts the court erred in granting summary judgment. Her sole argument is that the court should have continued the summary judgment hearing to allow her time to discover additional facts to oppose the motion.3"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, 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." (§ 437c, subd. (h), italics added.)

........

Furthermore, Christoffersen made no showing of diligence in the discovery process. Her ex parte application (filed one week before her opposition to the motion for summary judgment was due) attempted to compel the production of the "tenure packets." But Christoffersen never made a freestanding request for production of such documents under section 2031.010, and only (arguably) requested such documents in deposition notices served less than a month before her opposition to summary judgment was due. Even assuming the document requests in the deposition notices can be read to include requests for the tenure packets, Christoffersen made no effort to explain why she waited so long to seek these documents.

Given the lack of a sufficient declaration, the court's decision to deny Christoffersen's request for continuance is reviewed for an abuse of discretion. The factors identified by the court in its minute order (failure to prepare proper declaration, lack of diligence) and the rest of the record provided to us suggest the court was within its discretion. Moreover, Christoffersen's failure to provide this court with a reporter's transcript precludes a review of the trial court's comments at the hearing for an abuse of discretion. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132.)

DISPOSITION

The judgment is affirmed. Soka shall recover costs incurred on appeal.WE CONCUR:O'LEARY, ACTING P. J.FYBEL, J.

TJ
TJ

CHRISTOFFERSEN v. SOKA UNIVERSITY OF AMERICAGAYE CHRISTOFFERSEN, Plaintiff and Appellant,v.SOKA UNIVERSITY OF AMERICA, Defendant and Respondent.

No. G042935.

Court of Appeals of California, Fourth District, Division Three.

Filed April 15, 2011.Glicker & Associates, Brian Glicker, and Maryam Atighechi; Gaye Christoffersen, in pro. per., for Plaintiff and Appellant.Musick, Peeler & Garrett, Steven D. Weinstein, David M. Lester, and Adam L. Johnson for Defendant and Respondent.

Ruling

The court granted Soka's summary judgment motion. The court explained its denial of the request for continuance in a written order as follows: "Plaintiff has failed to submit a declaration detailing what facts she intended to obtain to oppose the motion and why such evidence could not be presented at the present time. In addition, plaintiff has not demonstrated reasonable diligence in discovery. This motion was filed in April." As noted above, Christoffersen elected to proceed without a reporter's transcript; thus, we are unable to consider what might have been said at the summary judgment hearing. The court entered judgment on September 29, 2009.

Christoffersen asserts the court erred in granting summary judgment. Her sole argument is that the court should have continued the summary judgment hearing to allow her time to discover additional facts to oppose the motion.3"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, 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." (§ 437c, subd. (h), italics added.)

........

Furthermore, Christoffersen made no showing of diligence in the discovery process. Her ex parte application (filed one week before her opposition to the motion for summary judgment was due) attempted to compel the production of the "tenure packets." But Christoffersen never made a freestanding request for production of such documents under section 2031.010, and only (arguably) requested such documents in deposition notices served less than a month before her opposition to summary judgment was due. Even assuming the document requests in the deposition notices can be read to include requests for the tenure packets, Christoffersen made no effort to explain why she waited so long to seek these documents.

Given the lack of a sufficient declaration, the court's decision to deny Christoffersen's request for continuance is reviewed for an abuse of discretion. The factors identified by the court in its minute order (failure to prepare proper declaration, lack of diligence) and the rest of the record provided to us suggest the court was within its discretion. Moreover, Christoffersen's failure to provide this court with a reporter's transcript precludes a review of the trial court's comments at the hearing for an abuse of discretion. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132.)

DISPOSITION

The judgment is affirmed. Soka shall recover costs incurred on appeal.WE CONCUR:O'LEARY, ACTING P. J.FYBEL, J.

TJ
TJ

CHRISTOFFERSEN v. SOKA UNIVERSITY OF AMERICAGAYE CHRISTOFFERSEN, Plaintiff and Appellant,v.SOKA UNIVERSITY OF AMERICA, Defendant and Respondent.

No. G042935.

Court of Appeals of California, Fourth District, Division Three.

Filed April 15, 2011.Glicker & Associates, Brian Glicker, and Maryam Atighechi; Gaye Christoffersen, in pro. per., for Plaintiff and Appellant.Musick, Peeler & Garrett, Steven D. Weinstein, David M. Lester, and Adam L. Johnson for Defendant and Respondent.

Ruling

The court granted Soka's summary judgment motion. The court explained its denial of the request for continuance in a written order as follows: "Plaintiff has failed to submit a declaration detailing what facts she intended to obtain to oppose the motion and why such evidence could not be presented at the present time. In addition, plaintiff has not demonstrated reasonable diligence in discovery. This motion was filed in April." As noted above, Christoffersen elected to proceed without a reporter's transcript; thus, we are unable to consider what might have been said at the summary judgment hearing. The court entered judgment on September 29, 2009.

Christoffersen asserts the court erred in granting summary judgment. Her sole argument is that the court should have continued the summary judgment hearing to allow her time to discover additional facts to oppose the motion.3"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, 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." (§ 437c, subd. (h), italics added.)

........

Furthermore, Christoffersen made no showing of diligence in the discovery process. Her ex parte application (filed one week before her opposition to the motion for summary judgment was due) attempted to compel the production of the "tenure packets." But Christoffersen never made a freestanding request for production of such documents under section 2031.010, and only (arguably) requested such documents in deposition notices served less than a month before her opposition to summary judgment was due. Even assuming the document requests in the deposition notices can be read to include requests for the tenure packets, Christoffersen made no effort to explain why she waited so long to seek these documents.

Given the lack of a sufficient declaration, the court's decision to deny Christoffersen's request for continuance is reviewed for an abuse of discretion. The factors identified by the court in its minute order (failure to prepare proper declaration, lack of diligence) and the rest of the record provided to us suggest the court was within its discretion. Moreover, Christoffersen's failure to provide this court with a reporter's transcript precludes a review of the trial court's comments at the hearing for an abuse of discretion. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132.)

DISPOSITION

The judgment is affirmed. Soka shall recover costs incurred on appeal.WE CONCUR:O'LEARY, ACTING P. J.FYBEL, J.

TJ
TJ

CHRISTOFFERSEN v. SOKA UNIVERSITY OF AMERICAGAYE CHRISTOFFERSEN, Plaintiff and Appellant,v.SOKA UNIVERSITY OF AMERICA, Defendant and Respondent.

No. G042935.

Court of Appeals of California, Fourth District, Division Three.

Filed April 15, 2011.Glicker & Associates, Brian Glicker, and Maryam Atighechi; Gaye Christoffersen, in pro. per., for Plaintiff and Appellant.Musick, Peeler & Garrett, Steven D. Weinstein, David M. Lester, and Adam L. Johnson for Defendant and Respondent.

Ruling

The court granted Soka's summary judgment motion. The court explained its denial of the request for continuance in a written order as follows: "Plaintiff has failed to submit a declaration detailing what facts she intended to obtain to oppose the motion and why such evidence could not be presented at the present time. In addition, plaintiff has not demonstrated reasonable diligence in discovery. This motion was filed in April." As noted above, Christoffersen elected to proceed without a reporter's transcript; thus, we are unable to consider what might have been said at the summary judgment hearing. The court entered judgment on September 29, 2009.

Christoffersen asserts the court erred in granting summary judgment. Her sole argument is that the court should have continued the summary judgment hearing to allow her time to discover additional facts to oppose the motion.3"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, 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." (§ 437c, subd. (h), italics added.)A court must provide relief to a party opposing summary judgment if a proper showing is made by affidavit. (Yuzon v. Collins (2004) 116 Cal.App.4th 149, 167.) "Continuance of a summary judgment hearing is not mandatory, however, when no affidavit is submitted or when the submitted affidavit fails to make the necessary showing under section 437c, subdivision (h). [Citations.] Thus, in the absence of an affidavit that requires a continuance under section 437c, subdivision (h), we review the trial court's denial of appellant's request for a continuance for abuse of discretion." (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 254 (Cooksey).)"A declaration in support of a request for continuance under section 437c, subdivision (h), 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. [Citations.]' [Citation.] . . . `It is not sufficient under the statute merely to indicate further discovery or investigation is contemplated. The statute makes it a condition that the party moving for a continuance show "facts essential to justify opposition may exist."'" (Cooksey, supra, 123 Cal.App.4th at p. 254.) A lack of diligence in pursuing discovery is a recognized factor supporting the denial of a continuance request. (Id. at p. 257.) "A good faith showing that further discovery is needed to oppose summary judgment requires some justification for why such discovery could not have been completed sooner." (Ibid.)

Here, Christoffersen failed to comply with the most basic aspect of the requirements of section 437c, subdivision (h) — submission of an affidavit pertaining to the need for a continuance. (See Mahoney v. Southland Mental Health Associates Medical Group (1990) 223 Cal.App.3d 167, 170.) Atighechi's "declaration" in support of the ex parte application was not filed under penalty of perjury and therefore cannot be considered an "affidavit" at all. "An affidavit is a written declaration under oath . . . ." (§ 2003.) An affidavit (or declaration) executed in California should include a representation "in substantially the following form: [¶] . . . `I certify (or declare) under penalty of perjury that the foregoing is true and correct' . . . ." (§ 2015.5, subd. (a).)

Atighechi's declaration in opposition to the summary judgment motion had no bearing on the issue of a continuance. Material in a memorandum of points and authorities or argument raised orally is insufficient to meet the requirements of section 437c, subdivision (h). (Ambrose v. Michelin North America, Inc. (2005) 134 Cal.App.4th 1350, 1353-1354; American Continental Ins. Co. v. C & Z Timber Co. (1987) 195 Cal.App.3d 1271, 1280.)

Moreover, even if we were to credit Ateghechi's ex parte "declaration" as an "affidavit," Christoffersen still fell short of the requirements under section 437c, subdivision (h). Ateghechi expressed a desire to obtain specific categories of documents in the "tenure packets" of several professors who received tenure at the time Christoffersen was denied tenure. But Ateghechi did not explain how obtaining such documents would provide her with "facts essential to justify opposition" as required by section 437c, subdivision (h). The tenor of the request is that exploratory discovery needed to occur, rather than Christoffersen needed more time to obtain specific facts to oppose the summary judgment motion.

Furthermore, Christoffersen made no showing of diligence in the discovery process. Her ex parte application (filed one week before her opposition to the motion for summary judgment was due) attempted to compel the production of the "tenure packets." But Christoffersen never made a freestanding request for production of such documents under section 2031.010, and only (arguably) requested such documents in deposition notices served less than a month before her opposition to summary judgment was due. Even assuming the document requests in the deposition notices can be read to include requests for the tenure packets, Christoffersen made no effort to explain why she waited so long to seek these documents.

Given the lack of a sufficient declaration, the court's decision to deny Christoffersen's request for continuance is reviewed for an abuse of discretion. The factors identified by the court in its minute order (failure to prepare proper declaration, lack of diligence) and the rest of the record provided to us suggest the court was within its discretion. Moreover, Christoffersen's failure to provide this court with a reporter's transcript precludes a review of the trial court's comments at the hearing for an abuse of discretion. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132.)

DISPOSITION

The judgment is affirmed. Soka shall recover costs incurred on appeal.WE CONCUR:O'LEARY, ACTING P. J.FYBEL, J.

TJ
TJ

CHRISTOFFERSEN v. SOKA UNIVERSITY OF AMERICAGAYE CHRISTOFFERSEN, Plaintiff and Appellant,v.SOKA UNIVERSITY OF AMERICA, Defendant and Respondent.

No. G042935.

Court of Appeals of California, Fourth District, Division Three.

Filed April 15, 2011.Glicker & Associates, Brian Glicker, and Maryam Atighechi; Gaye Christoffersen, in pro. per., for Plaintiff and Appellant.Musick, Peeler & Garrett, Steven D. Weinstein, David M. Lester, and Adam L. Johnson for Defendant and Respondent.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

OPINION

IKOLA, J.Plaintiff Gaye Christoffersen appeals a judgment entered in favor of defendant Soka University of America (Soka) following a successful summary judgment motion.1 Christoffersen does not contend summary judgment was inappropriate based on the evidence presented to the court in the parties' respective submissions; instead, she argues the court erred by declining to continue the summary judgment hearing to allow Christoffersen additional time for discovery pursuant to Code of Civil Procedure section 437c, subdivision (h).2 We affirm. Christoffersen failed to make an adequate showing under section 437c, subdivision (h), and the court did not abuse its discretion by denying the request for a continuance.

FACTS

Christoffersen, a university professor, sued Soka for alleged religious discrimination and age discrimination after Soka denied her application for tenure. Christoffersen alleged she was denied tenure because: (1) she refused to join a Buddhist organization, Soka Gakkai International-USA (Soka Gakkai); and (2) she was 62 years old at the time of her tenure denial.Christoffersen's initial complaint was filed on May 22, 2008, and her first amended complaint was filed September 4, 2008. Soka filed an answer to the first amended complaint on February 4, 2009.

Motion for Summary Judgment

On April 24, 2009, Soka filed a motion for summary judgment, noticing the hearing for September 4, 2009. Soka asserted Christoffersen could not establish a prima facie case of discrimination because Soka had legitimate, nondiscriminatory reasons for its decision to deny tenure to Christoffersen, and because there was no evidence the stated reasons for the decision were pretextual.

Included with Soka's summary judgment papers were declarations by several Soka officials involved in the tenure process. For instance, Provost Tomoko Takahashi declared in relevant part: "Dr. Christoffersen was one of four candidates being considered for tenure in Spring 2008, whose applications I reviewed. Neither religion nor age played any role in my decision regarding tenure for any of the candidates. In fact, at all times during the Spring 2008 tenure review process, I did not know the religion or age of any of the four candidates who were being considered for tenure. The three other candidates were granted tenure."

Also included in the summary judgment papers were declarations executed by the three professors who received tenure in the spring of 2008. Professor Edward Lowe attested: he was granted tenure in the spring of 2008; he was not and is not a member of the religious organization Soka Gakkai; he was 41 years old in the spring of 2008; and he had no knowledge that religion or age played a role in his tenure application. Professor XiaoXing Liu and Professor Hiroshi Matsumoto, both awarded tenure in the spring of 2008 at ages 56 and 50, respectively, also attested to their lack of Soka Gakkai membership and the absence of religion or age as a factor in the tenure application process.

Discovery

Christoffersen never served any written discovery requests (i.e., interrogatories, inspection demands, or requests for admission) during the pendency of the lawsuit.On July 22, 2009, Christoffersen served deposition notices (set for August 5-7) for four Soka-affiliated individuals: Dean of Faculty Edward Feasel, Provost Tomoko Takahashi, Professor Phat Vu, and Professor Gail Thomas. After discussion by the parties as to witness availability, the depositions were scheduled for August 6, August 7, August 12, and August 13. Nevertheless, on August 11, Christoffersen called off the depositions of Professor Thomas and Dean Feasel, claiming the depositions could not proceed without the production of records pertaining to the professors who received tenure in the spring of 2008.

The deposition notices specified certain categories of documents to be produced at the depositions. The Dean Feasel notice included (among 25 separate requests) requests for: "documents which show that `neither religion nor age played any role in my decision regarding tenure for any of the candidates'"; "documents which show that `in fact, at all times during spring 2008 tenure review process, I did not know the religion or age of any of the four candidates who were being considered for tenure'"; and "documents upon which you relied to grant the three other candidates tenure." The notice for Provost Takahashi included similar document requests among the 25 categories requested. The other two deposition notices did not request documents pertaining to the other spring 2008 candidates for tenure.

Ex Parte Application

On August 13, 2009, Christoffersen filed an ex parte application, seeking the following relief: (1) an order compelling Soka to produce certain "tenure packets," which consisted of documents pertaining to the successful tenure applications of professors who were granted tenure at the same time Soka denied tenure to Christoffersen; and (2) an order continuing the summary judgment hearing.

In addition to a memorandum of points and authorities, Christoffersen's attorney, Maryam Atighechi, filed a separate document in support of the ex parte application. Although this document was titled "Declaration of Maryam Atighechi," it was not executed under penalty of perjury.

The document stated as follows: "1. I am an attorney at law . . . . All of the statements made herein are of my own personal knowledge and, if called upon to testify thereto could, and would, do so competently. [¶] 2. [I provided sufficient ex parte notice to counsel for opposing parties.] [¶] 3. The application to continue the Motion for Summary Judgment is made in good faith. At the deposition of Provost Tomoko Takahashi Plaintiff learned that the Provost's decision to grant or deny an applicant's tenure was inconsistent with the [Rank and Tenure Committee's] recommendations. [¶] 4. Plaintiff needs further discovery in order to properly oppose Soka University's Motion for Summary Judgment.""5. The discovery plaintiff is requesting are the documents pertaining to 1) Application for tenure 2) [Rank and Tenure Committee] report and notes 3) [university-wide University Rank and Tenure Committee] report and notes 4) Dean Feasel's reports and notes 5) Provost Tomoko Takahashi's decision 6) IDEA evaluations for the five individuals granted tenure.""6. Soka University provided supporting declarations from two applicants who were granted tenure alleging that neither age nor religion played a role in granting them tenure. [¶] 7. Plaintiff needs to evaluate the tenure packet to determine the basis for granting them tenure. This is especially true since at the Provosts deposition she admitted that the [Rank and Tenure Committee] recommended denial of tenure for certain applicants including Hiroshimi Matsumoto. [¶] 8. A continuance is needed to obtain facts essential to oppose the motion for summary judgment."

The court denied the ex parte application by way of a minute order dated August 14, 2009. Christoffersen represents in her brief that the court "did not provide a reason as to the denial of the ex parte application and, after reproaching counsel for Christoffersen for generating paperwork, instructed that the request for continuance be made in the Opposition to Motion for Summary Judgment." Christoffersen elected to proceed on appeal without a reporter's transcript. Thus, it is impossible for this court to consider what was said by the court at the ex parte hearing.

Opposition to Summary Judgment

One week later, Christoffersen filed her opposition to Soka's summary judgment motion. In her memorandum of points and authorities, Christoffersen repeated the argument she raised in her ex parte application: the court should compel production of tenure packets for those professors who received tenure contemporaneously with Christoffersen's rejection and the court should continue the summary judgment hearing to allow her time to review the tenure packets.

Attorney Maryam Ateghechi filed a declaration (under penalty of perjury) in opposition to Soka's motion for summary judgment. But this declaration made no mention of the need for additional evidence and a continuance. Instead, Ateghechi purported to authenticate various exhibits (e.g., deposition transcript excerpts, documents obtained during the litigation or from public sources) for purposes of opposing the motion for summary judgment on the merits.

Ruling

The court granted Soka's summary judgment motion. The court explained its denial of the request for continuance in a written order as follows: "Plaintiff has failed to submit a declaration detailing what facts she intended to obtain to oppose the motion and why such evidence could not be presented at the present time. In addition, plaintiff has not demonstrated reasonable diligence in discovery. This motion was filed in April." As noted above, Christoffersen elected to proceed without a reporter's transcript; thus, we are unable to consider what might have been said at the summary judgment hearing. The court entered judgment on September 29, 2009.

Christoffersen asserts the court erred in granting summary judgment. Her sole argument is that the court should have continued the summary judgment hearing to allow her time to discover additional facts to oppose the motion.3"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, 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." (§ 437c, subd. (h), italics added.)A court must provide relief to a party opposing summary judgment if a proper showing is made by affidavit. (Yuzon v. Collins (2004) 116 Cal.App.4th 149, 167.) "Continuance of a summary judgment hearing is not mandatory, however, when no affidavit is submitted or when the submitted affidavit fails to make the necessary showing under section 437c, subdivision (h). [Citations.] Thus, in the absence of an affidavit that requires a continuance under section 437c, subdivision (h), we review the trial court's denial of appellant's request for a continuance for abuse of discretion." (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 254 (Cooksey).)"A declaration in support of a request for continuance under section 437c, subdivision (h), 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. [Citations.]' [Citation.] . . . `It is not sufficient under the statute merely to indicate further discovery or investigation is contemplated. The statute makes it a condition that the party moving for a continuance show "facts essential to justify opposition may exist."'" (Cooksey, supra, 123 Cal.App.4th at p. 254.) A lack of diligence in pursuing discovery is a recognized factor supporting the denial of a continuance request. (Id. at p. 257.) "A good faith showing that further discovery is needed to oppose summary judgment requires some justification for why such discovery could not have been completed sooner." (Ibid.)

Here, Christoffersen failed to comply with the most basic aspect of the requirements of section 437c, subdivision (h) — submission of an affidavit pertaining to the need for a continuance. (See Mahoney v. Southland Mental Health Associates Medical Group (1990) 223 Cal.App.3d 167, 170.) Atighechi's "declaration" in support of the ex parte application was not filed under penalty of perjury and therefore cannot be considered an "affidavit" at all. "An affidavit is a written declaration under oath . . . ." (§ 2003.) An affidavit (or declaration) executed in California should include a representation "in substantially the following form: [¶] . . . `I certify (or declare) under penalty of perjury that the foregoing is true and correct' . . . ." (§ 2015.5, subd. (a).)

Atighechi's declaration in opposition to the summary judgment motion had no bearing on the issue of a continuance. Material in a memorandum of points and authorities or argument raised orally is insufficient to meet the requirements of section 437c, subdivision (h). (Ambrose v. Michelin North America, Inc. (2005) 134 Cal.App.4th 1350, 1353-1354; American Continental Ins. Co. v. C & Z Timber Co. (1987) 195 Cal.App.3d 1271, 1280.)

Moreover, even if we were to credit Ateghechi's ex parte "declaration" as an "affidavit," Christoffersen still fell short of the requirements under section 437c, subdivision (h). Ateghechi expressed a desire to obtain specific categories of documents in the "tenure packets" of several professors who received tenure at the time Christoffersen was denied tenure. But Ateghechi did not explain how obtaining such documents would provide her with "facts essential to justify opposition" as required by section 437c, subdivision (h). The tenor of the request is that exploratory discovery needed to occur, rather than Christoffersen needed more time to obtain specific facts to oppose the summary judgment motion.

Furthermore, Christoffersen made no showing of diligence in the discovery process. Her ex parte application (filed one week before her opposition to the motion for summary judgment was due) attempted to compel the production of the "tenure packets." But Christoffersen never made a freestanding request for production of such documents under section 2031.010, and only (arguably) requested such documents in deposition notices served less than a month before her opposition to summary judgment was due. Even assuming the document requests in the deposition notices can be read to include requests for the tenure packets, Christoffersen made no effort to explain why she waited so long to seek these documents.

Given the lack of a sufficient declaration, the court's decision to deny Christoffersen's request for continuance is reviewed for an abuse of discretion. The factors identified by the court in its minute order (failure to prepare proper declaration, lack of diligence) and the rest of the record provided to us suggest the court was within its discretion. Moreover, Christoffersen's failure to provide this court with a reporter's transcript precludes a review of the trial court's comments at the hearing for an abuse of discretion. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132.)

DISPOSITION

The judgment is affirmed. Soka shall recover costs incurred on appeal.WE CONCUR:O'LEARY, ACTING P. J.FYBEL, J.

Infinitepla
Infinitepla

CHRISTOFFERSEN v. SOKA UNIVERSITY OF AMERICAGAYE CHRISTOFFERSEN, Plaintiff and Appellant,v.SOKA UNIVERSITY OF AMERICA, Defendant and Respondent.

No. G042935.

Court of Appeals of California, Fourth District, Division Three.

Filed April 15, 2011.Glicker & Associates, Brian Glicker, and Maryam Atighechi; Gaye Christoffersen, in pro. per., for Plaintiff and Appellant.Musick, Peeler & Garrett, Steven D. Weinstein, David M. Lester, and Adam L. Johnson for Defendant and Respondent.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

OPINION

IKOLA, J.Plaintiff Gaye Christoffersen appeals a judgment entered in favor of defendant Soka University of America (Soka) following a successful summary judgment motion.1 Christoffersen does not contend summary judgment was inappropriate based on the evidence presented to the court in the parties' respective submissions; instead, she argues the court erred by declining to continue the summary judgment hearing to allow Christoffersen additional time for discovery pursuant to Code of Civil Procedure section 437c, subdivision (h).2 We affirm. Christoffersen failed to make an adequate showing under section 437c, subdivision (h), and the court did not abuse its discretion by denying the request for a continuance.

FACTS

Christoffersen, a university professor, sued Soka for alleged religious discrimination and age discrimination after Soka denied her application for tenure. Christoffersen alleged she was denied tenure because: (1) she refused to join a Buddhist organization, Soka Gakkai International-USA (Soka Gakkai); and (2) she was 62 years old at the time of her tenure denial.Christoffersen's initial complaint was filed on May 22, 2008, and her first amended complaint was filed September 4, 2008. Soka filed an answer to the first amended complaint on February 4, 2009.

Motion for Summary Judgment

On April 24, 2009, Soka filed a motion for summary judgment, noticing the hearing for September 4, 2009. Soka asserted Christoffersen could not establish a prima facie case of discrimination because Soka had legitimate, nondiscriminatory reasons for its decision to deny tenure to Christoffersen, and because there was no evidence the stated reasons for the decision were pretextual.

Included with Soka's summary judgment papers were declarations by several Soka officials involved in the tenure process. For instance, Provost Tomoko Takahashi declared in relevant part: "Dr. Christoffersen was one of four candidates being considered for tenure in Spring 2008, whose applications I reviewed. Neither religion nor age played any role in my decision regarding tenure for any of the candidates. In fact, at all times during the Spring 2008 tenure review process, I did not know the religion or age of any of the four candidates who were being considered for tenure. The three other candidates were granted tenure."

Also included in the summary judgment papers were declarations executed by the three professors who received tenure in the spring of 2008. Professor Edward Lowe attested: he was granted tenure in the spring of 2008; he was not and is not a member of the religious organization Soka Gakkai; he was 41 years old in the spring of 2008; and he had no knowledge that religion or age played a role in his tenure application. Professor XiaoXing Liu and Professor Hiroshi Matsumoto, both awarded tenure in the spring of 2008 at ages 56 and 50, respectively, also attested to their lack of Soka Gakkai membership and the absence of religion or age as a factor in the tenure application process.

Discovery

Christoffersen never served any written discovery requests (i.e., interrogatories, inspection demands, or requests for admission) during the pendency of the lawsuit.On July 22, 2009, Christoffersen served deposition notices (set for August 5-7) for four Soka-affiliated individuals: Dean of Faculty Edward Feasel, Provost Tomoko Takahashi, Professor Phat Vu, and Professor Gail Thomas. After discussion by the parties as to witness availability, the depositions were scheduled for August 6, August 7, August 12, and August 13. Nevertheless, on August 11, Christoffersen called off the depositions of Professor Thomas and Dean Feasel, claiming the depositions could not proceed without the production of records pertaining to the professors who received tenure in the spring of 2008.

The deposition notices specified certain categories of documents to be produced at the depositions. The Dean Feasel notice included (among 25 separate requests) requests for: "documents which show that `neither religion nor age played any role in my decision regarding tenure for any of the candidates'"; "documents which show that `in fact, at all times during spring 2008 tenure review process, I did not know the religion or age of any of the four candidates who were being considered for tenure'"; and "documents upon which you relied to grant the three other candidates tenure." The notice for Provost Takahashi included similar document requests among the 25 categories requested. The other two deposition notices did not request documents pertaining to the other spring 2008 candidates for tenure.

Ex Parte Application

On August 13, 2009, Christoffersen filed an ex parte application, seeking the following relief: (1) an order compelling Soka to produce certain "tenure packets," which consisted of documents pertaining to the successful tenure applications of professors who were granted tenure at the same time Soka denied tenure to Christoffersen; and (2) an order continuing the summary judgment hearing.

In addition to a memorandum of points and authorities, Christoffersen's attorney, Maryam Atighechi, filed a separate document in support of the ex parte application. Although this document was titled "Declaration of Maryam Atighechi," it was not executed under penalty of perjury.

The document stated as follows: "1. I am an attorney at law . . . . All of the statements made herein are of my own personal knowledge and, if called upon to testify thereto could, and would, do so competently. [¶] 2. [I provided sufficient ex parte notice to counsel for opposing parties.] [¶] 3. The application to continue the Motion for Summary Judgment is made in good faith. At the deposition of Provost Tomoko Takahashi Plaintiff learned that the Provost's decision to grant or deny an applicant's tenure was inconsistent with the [Rank and Tenure Committee's] recommendations. [¶] 4. Plaintiff needs further discovery in order to properly oppose Soka University's Motion for Summary Judgment.""5. The discovery plaintiff is requesting are the documents pertaining to 1) Application for tenure 2) [Rank and Tenure Committee] report and notes 3) [university-wide University Rank and Tenure Committee] report and notes 4) Dean Feasel's reports and notes 5) Provost Tomoko Takahashi's decision 6) IDEA evaluations for the five individuals granted tenure.""6. Soka University provided supporting declarations from two applicants who were granted tenure alleging that neither age nor religion played a role in granting them tenure. [¶] 7. Plaintiff needs to evaluate the tenure packet to determine the basis for granting them tenure. This is especially true since at the Provosts deposition she admitted that the [Rank and Tenure Committee] recommended denial of tenure for certain applicants including Hiroshimi Matsumoto. [¶] 8. A continuance is needed to obtain facts essential to oppose the motion for summary judgment."

The court denied the ex parte application by way of a minute order dated August 14, 2009. Christoffersen represents in her brief that the court "did not provide a reason as to the denial of the ex parte application and, after reproaching counsel for Christoffersen for generating paperwork, instructed that the request for continuance be made in the Opposition to Motion for Summary Judgment." Christoffersen elected to proceed on appeal without a reporter's transcript. Thus, it is impossible for this court to consider what was said by the court at the ex parte hearing.

Opposition to Summary Judgment

One week later, Christoffersen filed her opposition to Soka's summary judgment motion. In her memorandum of points and authorities, Christoffersen repeated the argument she raised in her ex parte application: the court should compel production of tenure packets for those professors who received tenure contemporaneously with Christoffersen's rejection and the court should continue the summary judgment hearing to allow her time to review the tenure packets.

Attorney Maryam Ateghechi filed a declaration (under penalty of perjury) in opposition to Soka's motion for summary judgment. But this declaration made no mention of the need for additional evidence and a continuance. Instead, Ateghechi purported to authenticate various exhibits (e.g., deposition transcript excerpts, documents obtained during the litigation or from public sources) for purposes of opposing the motion for summary judgment on the merits.

Ruling

The court granted Soka's summary judgment motion. The court explained its denial of the request for continuance in a written order as follows: "Plaintiff has failed to submit a declaration detailing what facts she intended to obtain to oppose the motion and why such evidence could not be presented at the present time. In addition, plaintiff has not demonstrated reasonable diligence in discovery. This motion was filed in April." As noted above, Christoffersen elected to proceed without a reporter's transcript; thus, we are unable to consider what might have been said at the summary judgment hearing. The court entered judgment on September 29, 2009.

Christoffersen asserts the court erred in granting summary judgment. Her sole argument is that the court should have continued the summary judgment hearing to allow her time to discover additional facts to oppose the motion.3"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, 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." (§ 437c, subd. (h), italics added.)A court must provide relief to a party opposing summary judgment if a proper showing is made by affidavit. (Yuzon v. Collins (2004) 116 Cal.App.4th 149, 167.) "Continuance of a summary judgment hearing is not mandatory, however, when no affidavit is submitted or when the submitted affidavit fails to make the necessary showing under section 437c, subdivision (h). [Citations.] Thus, in the absence of an affidavit that requires a continuance under section 437c, subdivision (h), we review the trial court's denial of appellant's request for a continuance for abuse of discretion." (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 254 (Cooksey).)"A declaration in support of a request for continuance under section 437c, subdivision (h), 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. [Citations.]' [Citation.] . . . `It is not sufficient under the statute merely to indicate further discovery or investigation is contemplated. The statute makes it a condition that the party moving for a continuance show "facts essential to justify opposition may exist."'" (Cooksey, supra, 123 Cal.App.4th at p. 254.) A lack of diligence in pursuing discovery is a recognized factor supporting the denial of a continuance request. (Id. at p. 257.) "A good faith showing that further discovery is needed to oppose summary judgment requires some justification for why such discovery could not have been completed sooner." (Ibid.)

Here, Christoffersen failed to comply with the most basic aspect of the requirements of section 437c, subdivision (h) — submission of an affidavit pertaining to the need for a continuance. (See Mahoney v. Southland Mental Health Associates Medical Group (1990) 223 Cal.App.3d 167, 170.) Atighechi's "declaration" in support of the ex parte application was not filed under penalty of perjury and therefore cannot be considered an "affidavit" at all. "An affidavit is a written declaration under oath . . . ." (§ 2003.) An affidavit (or declaration) executed in California should include a representation "in substantially the following form: [¶] . . . `I certify (or declare) under penalty of perjury that the foregoing is true and correct' . . . ." (§ 2015.5, subd. (a).)

Atighechi's declaration in opposition to the summary judgment motion had no bearing on the issue of a continuance. Material in a memorandum of points and authorities or argument raised orally is insufficient to meet the requirements of section 437c, subdivision (h). (Ambrose v. Michelin North America, Inc. (2005) 134 Cal.App.4th 1350, 1353-1354; American Continental Ins. Co. v. C & Z Timber Co. (1987) 195 Cal.App.3d 1271, 1280.)

Moreover, even if we were to credit Ateghechi's ex parte "declaration" as an "affidavit," Christoffersen still fell short of the requirements under section 437c, subdivision (h). Ateghechi expressed a desire to obtain specific categories of documents in the "tenure packets" of several professors who received tenure at the time Christoffersen was denied tenure. But Ateghechi did not explain how obtaining such documents would provide her with "facts essential to justify opposition" as required by section 437c, subdivision (h). The tenor of the request is that exploratory discovery needed to occur, rather than Christoffersen needed more time to obtain specific facts to oppose the summary judgment motion.

Furthermore, Christoffersen made no showing of diligence in the discovery process. Her ex parte application (filed one week before her opposition to the motion for summary judgment was due) attempted to compel the production of the "tenure packets." But Christoffersen never made a freestanding request for production of such documents under section 2031.010, and only (arguably) requested such documents in deposition notices served less than a month before her opposition to summary judgment was due. Even assuming the document requests in the deposition notices can be read to include requests for the tenure packets, Christoffersen made no effort to explain why she waited so long to seek these documents.

Given the lack of a sufficient declaration, the court's decision to deny Christoffersen's request for continuance is reviewed for an abuse of discretion. The factors identified by the court in its minute order (failure to prepare proper declaration, lack of diligence) and the rest of the record provided to us suggest the court was within its discretion. Moreover, Christoffersen's failure to provide this court with a reporter's transcript precludes a review of the trial court's comments at the hearing for an abuse of discretion. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132.)

DISPOSITION

The judgment is affirmed. Soka shall recover costs incurred on appeal.WE CONCUR:O'LEARY, ACTING P. J.FYBEL, J.

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CHRISTOFFERSEN v. SOKA UNIVERSITY OF AMERICAGAYE CHRISTOFFERSEN, Plaintiff and Appellant,v.SOKA UNIVERSITY OF AMERICA, Defendant and Respondent.

No. G042935.

Court of Appeals of California, Fourth District, Division Three.

Filed April 15, 2011.Glicker & Associates, Brian Glicker, and Maryam Atighechi; Gaye Christoffersen, in pro. per., for Plaintiff and Appellant.Musick, Peeler & Garrett, Steven D. Weinstein, David M. Lester, and Adam L. Johnson for Defendant and Respondent.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

OPINION

IKOLA, J.Plaintiff Gaye Christoffersen appeals a judgment entered in favor of defendant Soka University of America (Soka) following a successful summary judgment motion.1 Christoffersen does not contend summary judgment was inappropriate based on the evidence presented to the court in the parties' respective submissions; instead, she argues the court erred by declining to continue the summary judgment hearing to allow Christoffersen additional time for discovery pursuant to Code of Civil Procedure section 437c, subdivision (h).2 We affirm. Christoffersen failed to make an adequate showing under section 437c, subdivision (h), and the court did not abuse its discretion by denying the request for a continuance.

FACTS

Christoffersen, a university professor, sued Soka for alleged religious discrimination and age discrimination after Soka denied her application for tenure. Christoffersen alleged she was denied tenure because: (1) she refused to join a Buddhist organization, Soka Gakkai International-USA (Soka Gakkai); and (2) she was 62 years old at the time of her tenure denial.Christoffersen's initial complaint was filed on May 22, 2008, and her first amended complaint was filed September 4, 2008. Soka filed an answer to the first amended complaint on February 4, 2009.

Motion for Summary Judgment

On April 24, 2009, Soka filed a motion for summary judgment, noticing the hearing for September 4, 2009. Soka asserted Christoffersen could not establish a prima facie case of discrimination because Soka had legitimate, nondiscriminatory reasons for its decision to deny tenure to Christoffersen, and because there was no evidence the stated reasons for the decision were pretextual.

Included with Soka's summary judgment papers were declarations by several Soka officials involved in the tenure process. For instance, Provost Tomoko Takahashi declared in relevant part: "Dr. Christoffersen was one of four candidates being considered for tenure in Spring 2008, whose applications I reviewed. Neither religion nor age played any role in my decision regarding tenure for any of the candidates. In fact, at all times during the Spring 2008 tenure review process, I did not know the religion or age of any of the four candidates who were being considered for tenure. The three other candidates were granted tenure."

Also included in the summary judgment papers were declarations executed by the three professors who received tenure in the spring of 2008. Professor Edward Lowe attested: he was granted tenure in the spring of 2008; he was not and is not a member of the religious organization Soka Gakkai; he was 41 years old in the spring of 2008; and he had no knowledge that religion or age played a role in his tenure application. Professor XiaoXing Liu and Professor Hiroshi Matsumoto, both awarded tenure in the spring of 2008 at ages 56 and 50, respectively, also attested to their lack of Soka Gakkai membership and the absence of religion or age as a factor in the tenure application process.

Discovery

Christoffersen never served any written discovery requests (i.e., interrogatories, inspection demands, or requests for admission) during the pendency of the lawsuit.On July 22, 2009, Christoffersen served deposition notices (set for August 5-7) for four Soka-affiliated individuals: Dean of Faculty Edward Feasel, Provost Tomoko Takahashi, Professor Phat Vu, and Professor Gail Thomas. After discussion by the parties as to witness availability, the depositions were scheduled for August 6, August 7, August 12, and August 13. Nevertheless, on August 11, Christoffersen called off the depositions of Professor Thomas and Dean Feasel, claiming the depositions could not proceed without the production of records pertaining to the professors who received tenure in the spring of 2008.

The deposition notices specified certain categories of documents to be produced at the depositions. The Dean Feasel notice included (among 25 separate requests) requests for: "documents which show that `neither religion nor age played any role in my decision regarding tenure for any of the candidates'"; "documents which show that `in fact, at all times during spring 2008 tenure review process, I did not know the religion or age of any of the four candidates who were being considered for tenure'"; and "documents upon which you relied to grant the three other candidates tenure." The notice for Provost Takahashi included similar document requests among the 25 categories requested. The other two deposition notices did not request documents pertaining to the other spring 2008 candidates for tenure.

Ex Parte Application

On August 13, 2009, Christoffersen filed an ex parte application, seeking the following relief: (1) an order compelling Soka to produce certain "tenure packets," which consisted of documents pertaining to the successful tenure applications of professors who were granted tenure at the same time Soka denied tenure to Christoffersen; and (2) an order continuing the summary judgment hearing.

In addition to a memorandum of points and authorities, Christoffersen's attorney, Maryam Atighechi, filed a separate document in support of the ex parte application. Although this document was titled "Declaration of Maryam Atighechi," it was not executed under penalty of perjury.

The document stated as follows: "1. I am an attorney at law . . . . All of the statements made herein are of my own personal knowledge and, if called upon to testify thereto could, and would, do so competently. [¶] 2. [I provided sufficient ex parte notice to counsel for opposing parties.] [¶] 3. The application to continue the Motion for Summary Judgment is made in good faith. At the deposition of Provost Tomoko Takahashi Plaintiff learned that the Provost's decision to grant or deny an applicant's tenure was inconsistent with the [Rank and Tenure Committee's] recommendations. [¶] 4. Plaintiff needs further discovery in order to properly oppose Soka University's Motion for Summary Judgment.""5. The discovery plaintiff is requesting are the documents pertaining to 1) Application for tenure 2) [Rank and Tenure Committee] report and notes 3) [university-wide University Rank and Tenure Committee] report and notes 4) Dean Feasel's reports and notes 5) Provost Tomoko Takahashi's decision 6) IDEA evaluations for the five individuals granted tenure.""6. Soka University provided supporting declarations from two applicants who were granted tenure alleging that neither age nor religion played a role in granting them tenure. [¶] 7. Plaintiff needs to evaluate the tenure packet to determine the basis for granting them tenure. This is especially true since at the Provosts deposition she admitted that the [Rank and Tenure Committee] recommended denial of tenure for certain applicants including Hiroshimi Matsumoto. [¶] 8. A continuance is needed to obtain facts essential to oppose the motion for summary judgment."

The court denied the ex parte application by way of a minute order dated August 14, 2009. Christoffersen represents in her brief that the court "did not provide a reason as to the denial of the ex parte application and, after reproaching counsel for Christoffersen for generating paperwork, instructed that the request for continuance be made in the Opposition to Motion for Summary Judgment." Christoffersen elected to proceed on appeal without a reporter's transcript. Thus, it is impossible for this court to consider what was said by the court at the ex parte hearing.

Opposition to Summary Judgment

One week later, Christoffersen filed her opposition to Soka's summary judgment motion. In her memorandum of points and authorities, Christoffersen repeated the argument she raised in her ex parte application: the court should compel production of tenure packets for those professors who received tenure contemporaneously with Christoffersen's rejection and the court should continue the summary judgment hearing to allow her time to review the tenure packets.

Attorney Maryam Ateghechi filed a declaration (under penalty of perjury) in opposition to Soka's motion for summary judgment. But this declaration made no mention of the need for additional evidence and a continuance. Instead, Ateghechi purported to authenticate various exhibits (e.g., deposition transcript excerpts, documents obtained during the litigation or from public sources) for purposes of opposing the motion for summary judgment on the merits.

Ruling

The court granted Soka's summary judgment motion. The court explained its denial of the request for continuance in a written order as follows: "Plaintiff has failed to submit a declaration detailing what facts she intended to obtain to oppose the motion and why such evidence could not be presented at the present time. In addition, plaintiff has not demonstrated reasonable diligence in discovery. This motion was filed in April." As noted above, Christoffersen elected to proceed without a reporter's transcript; thus, we are unable to consider what might have been said at the summary judgment hearing. The court entered judgment on September 29, 2009.

Christoffersen asserts the court erred in granting summary judgment. Her sole argument is that the court should have continued the summary judgment hearing to allow her time to discover additional facts to oppose the motion.3"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, 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." (§ 437c, subd. (h), italics added.)A court must provide relief to a party opposing summary judgment if a proper showing is made by affidavit. (Yuzon v. Collins (2004) 116 Cal.App.4th 149, 167.) "Continuance of a summary judgment hearing is not mandatory, however, when no affidavit is submitted or when the submitted affidavit fails to make the necessary showing under section 437c, subdivision (h). [Citations.] Thus, in the absence of an affidavit that requires a continuance under section 437c, subdivision (h), we review the trial court's denial of appellant's request for a continuance for abuse of discretion." (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 254 (Cooksey).)"A declaration in support of a request for continuance under section 437c, subdivision (h), 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. [Citations.]' [Citation.] . . . `It is not sufficient under the statute merely to indicate further discovery or investigation is contemplated. The statute makes it a condition that the party moving for a continuance show "facts essential to justify opposition may exist."'" (Cooksey, supra, 123 Cal.App.4th at p. 254.) A lack of diligence in pursuing discovery is a recognized factor supporting the denial of a continuance request. (Id. at p. 257.) "A good faith showing that further discovery is needed to oppose summary judgment requires some justification for why such discovery could not have been completed sooner." (Ibid.)

Here, Christoffersen failed to comply with the most basic aspect of the requirements of section 437c, subdivision (h) — submission of an affidavit pertaining to the need for a continuance. (See Mahoney v. Southland Mental Health Associates Medical Group (1990) 223 Cal.App.3d 167, 170.) Atighechi's "declaration" in support of the ex parte application was not filed under penalty of perjury and therefore cannot be considered an "affidavit" at all. "An affidavit is a written declaration under oath . . . ." (§ 2003.) An affidavit (or declaration) executed in California should include a representation "in substantially the following form: [¶] . . . `I certify (or declare) under penalty of perjury that the foregoing is true and correct' . . . ." (§ 2015.5, subd. (a).)

Atighechi's declaration in opposition to the summary judgment motion had no bearing on the issue of a continuance. Material in a memorandum of points and authorities or argument raised orally is insufficient to meet the requirements of section 437c, subdivision (h). (Ambrose v. Michelin North America, Inc. (2005) 134 Cal.App.4th 1350, 1353-1354; American Continental Ins. Co. v. C & Z Timber Co. (1987) 195 Cal.App.3d 1271, 1280.)

Moreover, even if we were to credit Ateghechi's ex parte "declaration" as an "affidavit," Christoffersen still fell short of the requirements under section 437c, subdivision (h). Ateghechi expressed a desire to obtain specific categories of documents in the "tenure packets" of several professors who received tenure at the time Christoffersen was denied tenure. But Ateghechi did not explain how obtaining such documents would provide her with "facts essential to justify opposition" as required by section 437c, subdivision (h). The tenor of the request is that exploratory discovery needed to occur, rather than Christoffersen needed more time to obtain specific facts to oppose the summary judgment motion.

Furthermore, Christoffersen made no showing of diligence in the discovery process. Her ex parte application (filed one week before her opposition to the motion for summary judgment was due) attempted to compel the production of the "tenure packets." But Christoffersen never made a freestanding request for production of such documents under section 2031.010, and only (arguably) requested such documents in deposition notices served less than a month before her opposition to summary judgment was due. Even assuming the document requests in the deposition notices can be read to include requests for the tenure packets, Christoffersen made no effort to explain why she waited so long to seek these documents.

Given the lack of a sufficient declaration, the court's decision to deny Christoffersen's request for continuance is reviewed for an abuse of discretion. The factors identified by the court in its minute order (failure to prepare proper declaration, lack of diligence) and the rest of the record provided to us suggest the court was within its discretion. Moreover, Christoffersen's failure to provide this court with a reporter's transcript precludes a review of the trial court's comments at the hearing for an abuse of discretion. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132.)

DISPOSITION

The judgment is affirmed. Soka shall recover costs incurred on appeal.WE CONCUR:O'LEARY, ACTING P. J.FYBEL, J.

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CHRISTOFFERSEN v. SOKA UNIVERSITY OF AMERICAGAYE CHRISTOFFERSEN, Plaintiff and Appellant,v.SOKA UNIVERSITY OF AMERICA, Defendant and Respondent.

No. G042935.

Court of Appeals of California, Fourth District, Division Three.

Filed April 15, 2011.Glicker & Associates, Brian Glicker, and Maryam Atighechi; Gaye Christoffersen, in pro. per., for Plaintiff and Appellant.Musick, Peeler & Garrett, Steven D. Weinstein, David M. Lester, and Adam L. Johnson for Defendant and Respondent.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

OPINION

IKOLA, J.Plaintiff Gaye Christoffersen appeals a judgment entered in favor of defendant Soka University of America (Soka) following a successful summary judgment motion.1 Christoffersen does not contend summary judgment was inappropriate based on the evidence presented to the court in the parties' respective submissions; instead, she argues the court erred by declining to continue the summary judgment hearing to allow Christoffersen additional time for discovery pursuant to Code of Civil Procedure section 437c, subdivision (h).2 We affirm. Christoffersen failed to make an adequate showing under section 437c, subdivision (h), and the court did not abuse its discretion by denying the request for a continuance.

FACTS

Christoffersen, a university professor, sued Soka for alleged religious discrimination and age discrimination after Soka denied her application for tenure. Christoffersen alleged she was denied tenure because: (1) she refused to join a Buddhist organization, Soka Gakkai International-USA (Soka Gakkai); and (2) she was 62 years old at the time of her tenure denial.Christoffersen's initial complaint was filed on May 22, 2008, and her first amended complaint was filed September 4, 2008. Soka filed an answer to the first amended complaint on February 4, 2009.

Motion for Summary Judgment

On April 24, 2009, Soka filed a motion for summary judgment, noticing the hearing for September 4, 2009. Soka asserted Christoffersen could not establish a prima facie case of discrimination because Soka had legitimate, nondiscriminatory reasons for its decision to deny tenure to Christoffersen, and because there was no evidence the stated reasons for the decision were pretextual.

Included with Soka's summary judgment papers were declarations by several Soka officials involved in the tenure process. For instance, Provost Tomoko Takahashi declared in relevant part: "Dr. Christoffersen was one of four candidates being considered for tenure in Spring 2008, whose applications I reviewed. Neither religion nor age played any role in my decision regarding tenure for any of the candidates. In fact, at all times during the Spring 2008 tenure review process, I did not know the religion or age of any of the four candidates who were being considered for tenure. The three other candidates were granted tenure."

Also included in the summary judgment papers were declarations executed by the three professors who received tenure in the spring of 2008. Professor Edward Lowe attested: he was granted tenure in the spring of 2008; he was not and is not a member of the religious organization Soka Gakkai; he was 41 years old in the spring of 2008; and he had no knowledge that religion or age played a role in his tenure application. Professor XiaoXing Liu and Professor Hiroshi Matsumoto, both awarded tenure in the spring of 2008 at ages 56 and 50, respectively, also attested to their lack of Soka Gakkai membership and the absence of religion or age as a factor in the tenure application process.

Discovery

Christoffersen never served any written discovery requests (i.e., interrogatories, inspection demands, or requests for admission) during the pendency of the lawsuit.On July 22, 2009, Christoffersen served deposition notices (set for August 5-7) for four Soka-affiliated individuals: Dean of Faculty Edward Feasel, Provost Tomoko Takahashi, Professor Phat Vu, and Professor Gail Thomas. After discussion by the parties as to witness availability, the depositions were scheduled for August 6, August 7, August 12, and August 13. Nevertheless, on August 11, Christoffersen called off the depositions of Professor Thomas and Dean Feasel, claiming the depositions could not proceed without the production of records pertaining to the professors who received tenure in the spring of 2008.

The deposition notices specified certain categories of documents to be produced at the depositions. The Dean Feasel notice included (among 25 separate requests) requests for: "documents which show that `neither religion nor age played any role in my decision regarding tenure for any of the candidates'"; "documents which show that `in fact, at all times during spring 2008 tenure review process, I did not know the religion or age of any of the four candidates who were being considered for tenure'"; and "documents upon which you relied to grant the three other candidates tenure." The notice for Provost Takahashi included similar document requests among the 25 categories requested. The other two deposition notices did not request documents pertaining to the other spring 2008 candidates for tenure.

Ex Parte Application

On August 13, 2009, Christoffersen filed an ex parte application, seeking the following relief: (1) an order compelling Soka to produce certain "tenure packets," which consisted of documents pertaining to the successful tenure applications of professors who were granted tenure at the same time Soka denied tenure to Christoffersen; and (2) an order continuing the summary judgment hearing.

In addition to a memorandum of points and authorities, Christoffersen's attorney, Maryam Atighechi, filed a separate document in support of the ex parte application. Although this document was titled "Declaration of Maryam Atighechi," it was not executed under penalty of perjury.

The document stated as follows: "1. I am an attorney at law . . . . All of the statements made herein are of my own personal knowledge and, if called upon to testify thereto could, and would, do so competently. [¶] 2. [I provided sufficient ex parte notice to counsel for opposing parties.] [¶] 3. The application to continue the Motion for Summary Judgment is made in good faith. At the deposition of Provost Tomoko Takahashi Plaintiff learned that the Provost's decision to grant or deny an applicant's tenure was inconsistent with the [Rank and Tenure Committee's] recommendations. [¶] 4. Plaintiff needs further discovery in order to properly oppose Soka University's Motion for Summary Judgment.""5. The discovery plaintiff is requesting are the documents pertaining to 1) Application for tenure 2) [Rank and Tenure Committee] report and notes 3) [university-wide University Rank and Tenure Committee] report and notes 4) Dean Feasel's reports and notes 5) Provost Tomoko Takahashi's decision 6) IDEA evaluations for the five individuals granted tenure.""6. Soka University provided supporting declarations from two applicants who were granted tenure alleging that neither age nor religion played a role in granting them tenure. [¶] 7. Plaintiff needs to evaluate the tenure packet to determine the basis for granting them tenure. This is especially true since at the Provosts deposition she admitted that the [Rank and Tenure Committee] recommended denial of tenure for certain applicants including Hiroshimi Matsumoto. [¶] 8. A continuance is needed to obtain facts essential to oppose the motion for summary judgment."

The court denied the ex parte application by way of a minute order dated August 14, 2009. Christoffersen represents in her brief that the court "did not provide a reason as to the denial of the ex parte application and, after reproaching counsel for Christoffersen for generating paperwork, instructed that the request for continuance be made in the Opposition to Motion for Summary Judgment." Christoffersen elected to proceed on appeal without a reporter's transcript. Thus, it is impossible for this court to consider what was said by the court at the ex parte hearing.

Opposition to Summary Judgment

One week later, Christoffersen filed her opposition to Soka's summary judgment motion. In her memorandum of points and authorities, Christoffersen repeated the argument she raised in her ex parte application: the court should compel production of tenure packets for those professors who received tenure contemporaneously with Christoffersen's rejection and the court should continue the summary judgment hearing to allow her time to review the tenure packets.

Attorney Maryam Ateghechi filed a declaration (under penalty of perjury) in opposition to Soka's motion for summary judgment. But this declaration made no mention of the need for additional evidence and a continuance. Instead, Ateghechi purported to authenticate various exhibits (e.g., deposition transcript excerpts, documents obtained during the litigation or from public sources) for purposes of opposing the motion for summary judgment on the merits.

Ruling

The court granted Soka's summary judgment motion. The court explained its denial of the request for continuance in a written order as follows: "Plaintiff has failed to submit a declaration detailing what facts she intended to obtain to oppose the motion and why such evidence could not be presented at the present time. In addition, plaintiff has not demonstrated reasonable diligence in discovery. This motion was filed in April." As noted above, Christoffersen elected to proceed without a reporter's transcript; thus, we are unable to consider what might have been said at the summary judgment hearing. The court entered judgment on September 29, 2009.

Christoffersen asserts the court erred in granting summary judgment. Her sole argument is that the court should have continued the summary judgment hearing to allow her time to discover additional facts to oppose the motion.3"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, 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." (§ 437c, subd. (h), italics added.)A court must provide relief to a party opposing summary judgment if a proper showing is made by affidavit. (Yuzon v. Collins (2004) 116 Cal.App.4th 149, 167.) "Continuance of a summary judgment hearing is not mandatory, however, when no affidavit is submitted or when the submitted affidavit fails to make the necessary showing under section 437c, subdivision (h). [Citations.] Thus, in the absence of an affidavit that requires a continuance under section 437c, subdivision (h), we review the trial court's denial of appellant's request for a continuance for abuse of discretion." (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 254 (Cooksey).)"A declaration in support of a request for continuance under section 437c, subdivision (h), 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. [Citations.]' [Citation.] . . . `It is not sufficient under the statute merely to indicate further discovery or investigation is contemplated. The statute makes it a condition that the party moving for a continuance show "facts essential to justify opposition may exist."'" (Cooksey, supra, 123 Cal.App.4th at p. 254.) A lack of diligence in pursuing discovery is a recognized factor supporting the denial of a continuance request. (Id. at p. 257.) "A good faith showing that further discovery is needed to oppose summary judgment requires some justification for why such discovery could not have been completed sooner." (Ibid.)

Here, Christoffersen failed to comply with the most basic aspect of the requirements of section 437c, subdivision (h) — submission of an affidavit pertaining to the need for a continuance. (See Mahoney v. Southland Mental Health Associates Medical Group (1990) 223 Cal.App.3d 167, 170.) Atighechi's "declaration" in support of the ex parte application was not filed under penalty of perjury and therefore cannot be considered an "affidavit" at all. "An affidavit is a written declaration under oath . . . ." (§ 2003.) An affidavit (or declaration) executed in California should include a representation "in substantially the following form: [¶] . . . `I certify (or declare) under penalty of perjury that the foregoing is true and correct' . . . ." (§ 2015.5, subd. (a).)

Atighechi's declaration in opposition to the summary judgment motion had no bearing on the issue of a continuance. Material in a memorandum of points and authorities or argument raised orally is insufficient to meet the requirements of section 437c, subdivision (h). (Ambrose v. Michelin North America, Inc. (2005) 134 Cal.App.4th 1350, 1353-1354; American Continental Ins. Co. v. C & Z Timber Co. (1987) 195 Cal.App.3d 1271, 1280.)

Moreover, even if we were to credit Ateghechi's ex parte "declaration" as an "affidavit," Christoffersen still fell short of the requirements under section 437c, subdivision (h). Ateghechi expressed a desire to obtain specific categories of documents in the "tenure packets" of several professors who received tenure at the time Christoffersen was denied tenure. But Ateghechi did not explain how obtaining such documents would provide her with "facts essential to justify opposition" as required by section 437c, subdivision (h). The tenor of the request is that exploratory discovery needed to occur, rather than Christoffersen needed more time to obtain specific facts to oppose the summary judgment motion.

Furthermore, Christoffersen made no showing of diligence in the discovery process. Her ex parte application (filed one week before her opposition to the motion for summary judgment was due) attempted to compel the production of the "tenure packets." But Christoffersen never made a freestanding request for production of such documents under section 2031.010, and only (arguably) requested such documents in deposition notices served less than a month before her opposition to summary judgment was due. Even assuming the document requests in the deposition notices can be read to include requests for the tenure packets, Christoffersen made no effort to explain why she waited so long to seek these documents.

Given the lack of a sufficient declaration, the court's decision to deny Christoffersen's request for continuance is reviewed for an abuse of discretion. The factors identified by the court in its minute order (failure to prepare proper declaration, lack of diligence) and the rest of the record provided to us suggest the court was within its discretion. Moreover, Christoffersen's failure to provide this court with a reporter's transcript precludes a review of the trial court's comments at the hearing for an abuse of discretion. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132.)

DISPOSITION

The judgment is affirmed. Soka shall recover costs incurred on appeal.WE CONCUR:O'LEARY, ACTING P. J.FYBEL, J.

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CHRISTOFFERSEN v. SOKA UNIVERSITY OF AMERICAGAYE CHRISTOFFERSEN, Plaintiff and Appellant,v.SOKA UNIVERSITY OF AMERICA, Defendant and Respondent.

No. G042935.

Court of Appeals of California, Fourth District, Division Three.

Filed April 15, 2011.Glicker & Associates, Brian Glicker, and Maryam Atighechi; Gaye Christoffersen, in pro. per., for Plaintiff and Appellant.Musick, Peeler & Garrett, Steven D. Weinstein, David M. Lester, and Adam L. Johnson for Defendant and Respondent.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

OPINION

IKOLA, J.Plaintiff Gaye Christoffersen appeals a judgment entered in favor of defendant Soka University of America (Soka) following a successful summary judgment motion.1 Christoffersen does not contend summary judgment was inappropriate based on the evidence presented to the court in the parties' respective submissions; instead, she argues the court erred by declining to continue the summary judgment hearing to allow Christoffersen additional time for discovery pursuant to Code of Civil Procedure section 437c, subdivision (h).2 We affirm. Christoffersen failed to make an adequate showing under section 437c, subdivision (h), and the court did not abuse its discretion by denying the request for a continuance.

FACTS

Christoffersen, a university professor, sued Soka for alleged religious discrimination and age discrimination after Soka denied her application for tenure. Christoffersen alleged she was denied tenure because: (1) she refused to join a Buddhist organization, Soka Gakkai International-USA (Soka Gakkai); and (2) she was 62 years old at the time of her tenure denial.Christoffersen's initial complaint was filed on May 22, 2008, and her first amended complaint was filed September 4, 2008. Soka filed an answer to the first amended complaint on February 4, 2009.

Motion for Summary Judgment

On April 24, 2009, Soka filed a motion for summary judgment, noticing the hearing for September 4, 2009. Soka asserted Christoffersen could not establish a prima facie case of discrimination because Soka had legitimate, nondiscriminatory reasons for its decision to deny tenure to Christoffersen, and because there was no evidence the stated reasons for the decision were pretextual.

Included with Soka's summary judgment papers were declarations by several Soka officials involved in the tenure process. For instance, Provost Tomoko Takahashi declared in relevant part: "Dr. Christoffersen was one of four candidates being considered for tenure in Spring 2008, whose applications I reviewed. Neither religion nor age played any role in my decision regarding tenure for any of the candidates. In fact, at all times during the Spring 2008 tenure review process, I did not know the religion or age of any of the four candidates who were being considered for tenure. The three other candidates were granted tenure."

Also included in the summary judgment papers were declarations executed by the three professors who received tenure in the spring of 2008. Professor Edward Lowe attested: he was granted tenure in the spring of 2008; he was not and is not a member of the religious organization Soka Gakkai; he was 41 years old in the spring of 2008; and he had no knowledge that religion or age played a role in his tenure application. Professor XiaoXing Liu and Professor Hiroshi Matsumoto, both awarded tenure in the spring of 2008 at ages 56 and 50, respectively, also attested to their lack of Soka Gakkai membership and the absence of religion or age as a factor in the tenure application process.

Discovery

Christoffersen never served any written discovery requests (i.e., interrogatories, inspection demands, or requests for admission) during the pendency of the lawsuit.On July 22, 2009, Christoffersen served deposition notices (set for August 5-7) for four Soka-affiliated individuals: Dean of Faculty Edward Feasel, Provost Tomoko Takahashi, Professor Phat Vu, and Professor Gail Thomas. After discussion by the parties as to witness availability, the depositions were scheduled for August 6, August 7, August 12, and August 13. Nevertheless, on August 11, Christoffersen called off the depositions of Professor Thomas and Dean Feasel, claiming the depositions could not proceed without the production of records pertaining to the professors who received tenure in the spring of 2008.

The deposition notices specified certain categories of documents to be produced at the depositions. The Dean Feasel notice included (among 25 separate requests) requests for: "documents which show that `neither religion nor age played any role in my decision regarding tenure for any of the candidates'"; "documents which show that `in fact, at all times during spring 2008 tenure review process, I did not know the religion or age of any of the four candidates who were being considered for tenure'"; and "documents upon which you relied to grant the three other candidates tenure." The notice for Provost Takahashi included similar document requests among the 25 categories requested. The other two deposition notices did not request documents pertaining to the other spring 2008 candidates for tenure.

Ex Parte Application

On August 13, 2009, Christoffersen filed an ex parte application, seeking the following relief: (1) an order compelling Soka to produce certain "tenure packets," which consisted of documents pertaining to the successful tenure applications of professors who were granted tenure at the same time Soka denied tenure to Christoffersen; and (2) an order continuing the summary judgment hearing.

In addition to a memorandum of points and authorities, Christoffersen's attorney, Maryam Atighechi, filed a separate document in support of the ex parte application. Although this document was titled "Declaration of Maryam Atighechi," it was not executed under penalty of perjury.

The document stated as follows: "1. I am an attorney at law . . . . All of the statements made herein are of my own personal knowledge and, if called upon to testify thereto could, and would, do so competently. [¶] 2. [I provided sufficient ex parte notice to counsel for opposing parties.] [¶] 3. The application to continue the Motion for Summary Judgment is made in good faith. At the deposition of Provost Tomoko Takahashi Plaintiff learned that the Provost's decision to grant or deny an applicant's tenure was inconsistent with the [Rank and Tenure Committee's] recommendations. [¶] 4. Plaintiff needs further discovery in order to properly oppose Soka University's Motion for Summary Judgment.""5. The discovery plaintiff is requesting are the documents pertaining to 1) Application for tenure 2) [Rank and Tenure Committee] report and notes 3) [university-wide University Rank and Tenure Committee] report and notes 4) Dean Feasel's reports and notes 5) Provost Tomoko Takahashi's decision 6) IDEA evaluations for the five individuals granted tenure.""6. Soka University provided supporting declarations from two applicants who were granted tenure alleging that neither age nor religion played a role in granting them tenure. [¶] 7. Plaintiff needs to evaluate the tenure packet to determine the basis for granting them tenure. This is especially true since at the Provosts deposition she admitted that the [Rank and Tenure Committee] recommended denial of tenure for certain applicants including Hiroshimi Matsumoto. [¶] 8. A continuance is needed to obtain facts essential to oppose the motion for summary judgment."

The court denied the ex parte application by way of a minute order dated August 14, 2009. Christoffersen represents in her brief that the court "did not provide a reason as to the denial of the ex parte application and, after reproaching counsel for Christoffersen for generating paperwork, instructed that the request for continuance be made in the Opposition to Motion for Summary Judgment." Christoffersen elected to proceed on appeal without a reporter's transcript. Thus, it is impossible for this court to consider what was said by the court at the ex parte hearing.

Opposition to Summary Judgment

One week later, Christoffersen filed her opposition to Soka's summary judgment motion. In her memorandum of points and authorities, Christoffersen repeated the argument she raised in her ex parte application: the court should compel production of tenure packets for those professors who received tenure contemporaneously with Christoffersen's rejection and the court should continue the summary judgment hearing to allow her time to review the tenure packets.

Attorney Maryam Ateghechi filed a declaration (under penalty of perjury) in opposition to Soka's motion for summary judgment. But this declaration made no mention of the need for additional evidence and a continuance. Instead, Ateghechi purported to authenticate various exhibits (e.g., deposition transcript excerpts, documents obtained during the litigation or from public sources) for purposes of opposing the motion for summary judgment on the merits.

Ruling

The court granted Soka's summary judgment motion. The court explained its denial of the request for continuance in a written order as follows: "Plaintiff has failed to submit a declaration detailing what facts she intended to obtain to oppose the motion and why such evidence could not be presented at the present time. In addition, plaintiff has not demonstrated reasonable diligence in discovery. This motion was filed in April." As noted above, Christoffersen elected to proceed without a reporter's transcript; thus, we are unable to consider what might have been said at the summary judgment hearing. The court entered judgment on September 29, 2009.

Christoffersen asserts the court erred in granting summary judgment. Her sole argument is that the court should have continued the summary judgment hearing to allow her time to discover additional facts to oppose the motion.3"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, 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." (§ 437c, subd. (h), italics added.)A court must provide relief to a party opposing summary judgment if a proper showing is made by affidavit. (Yuzon v. Collins (2004) 116 Cal.App.4th 149, 167.) "Continuance of a summary judgment hearing is not mandatory, however, when no affidavit is submitted or when the submitted affidavit fails to make the necessary showing under section 437c, subdivision (h). [Citations.] Thus, in the absence of an affidavit that requires a continuance under section 437c, subdivision (h), we review the trial court's denial of appellant's request for a continuance for abuse of discretion." (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 254 (Cooksey).)"A declaration in support of a request for continuance under section 437c, subdivision (h), 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. [Citations.]' [Citation.] . . . `It is not sufficient under the statute merely to indicate further discovery or investigation is contemplated. The statute makes it a condition that the party moving for a continuance show "facts essential to justify opposition may exist."'" (Cooksey, supra, 123 Cal.App.4th at p. 254.) A lack of diligence in pursuing discovery is a recognized factor supporting the denial of a continuance request. (Id. at p. 257.) "A good faith showing that further discovery is needed to oppose summary judgment requires some justification for why such discovery could not have been completed sooner." (Ibid.)

Here, Christoffersen failed to comply with the most basic aspect of the requirements of section 437c, subdivision (h) — submission of an affidavit pertaining to the need for a continuance. (See Mahoney v. Southland Mental Health Associates Medical Group (1990) 223 Cal.App.3d 167, 170.) Atighechi's "declaration" in support of the ex parte application was not filed under penalty of perjury and therefore cannot be considered an "affidavit" at all. "An affidavit is a written declaration under oath . . . ." (§ 2003.) An affidavit (or declaration) executed in California should include a representation "in substantially the following form: [¶] . . . `I certify (or declare) under penalty of perjury that the foregoing is true and correct' . . . ." (§ 2015.5, subd. (a).)

Atighechi's declaration in opposition to the summary judgment motion had no bearing on the issue of a continuance. Material in a memorandum of points and authorities or argument raised orally is insufficient to meet the requirements of section 437c, subdivision (h). (Ambrose v. Michelin North America, Inc. (2005) 134 Cal.App.4th 1350, 1353-1354; American Continental Ins. Co. v. C & Z Timber Co. (1987) 195 Cal.App.3d 1271, 1280.)

Moreover, even if we were to credit Ateghechi's ex parte "declaration" as an "affidavit," Christoffersen still fell short of the requirements under section 437c, subdivision (h). Ateghechi expressed a desire to obtain specific categories of documents in the "tenure packets" of several professors who received tenure at the time Christoffersen was denied tenure. But Ateghechi did not explain how obtaining such documents would provide her with "facts essential to justify opposition" as required by section 437c, subdivision (h). The tenor of the request is that exploratory discovery needed to occur, rather than Christoffersen needed more time to obtain specific facts to oppose the summary judgment motion.

Furthermore, Christoffersen made no showing of diligence in the discovery process. Her ex parte application (filed one week before her opposition to the motion for summary judgment was due) attempted to compel the production of the "tenure packets." But Christoffersen never made a freestanding request for production of such documents under section 2031.010, and only (arguably) requested such documents in deposition notices served less than a month before her opposition to summary judgment was due. Even assuming the document requests in the deposition notices can be read to include requests for the tenure packets, Christoffersen made no effort to explain why she waited so long to seek these documents.

Given the lack of a sufficient declaration, the court's decision to deny Christoffersen's request for continuance is reviewed for an abuse of discretion. The factors identified by the court in its minute order (failure to prepare proper declaration, lack of diligence) and the rest of the record provided to us suggest the court was within its discretion. Moreover, Christoffersen's failure to provide this court with a reporter's transcript precludes a review of the trial court's comments at the hearing for an abuse of discretion. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132.)

DISPOSITION

The judgment is affirmed. Soka shall recover costs incurred on appeal.WE CONCUR:O'LEARY, ACTING P. J.FYBEL, J.

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CHRISTOFFERSEN v. SOKA UNIVERSITY OF AMERICAGAYE CHRISTOFFERSEN, Plaintiff and Appellant,v.SOKA UNIVERSITY OF AMERICA, Defendant and Respondent.

No. G042935.

Court of Appeals of California, Fourth District, Division Three.

Filed April 15, 2011.Glicker & Associates, Brian Glicker, and Maryam Atighechi; Gaye Christoffersen, in pro. per., for Plaintiff and Appellant.Musick, Peeler & Garrett, Steven D. Weinstein, David M. Lester, and Adam L. Johnson for Defendant and Respondent.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

OPINION

IKOLA, J.Plaintiff Gaye Christoffersen appeals a judgment entered in favor of defendant Soka University of America (Soka) following a successful summary judgment motion.1 Christoffersen does not contend summary judgment was inappropriate based on the evidence presented to the court in the parties' respective submissions; instead, she argues the court erred by declining to continue the summary judgment hearing to allow Christoffersen additional time for discovery pursuant to Code of Civil Procedure section 437c, subdivision (h).2 We affirm. Christoffersen failed to make an adequate showing under section 437c, subdivision (h), and the court did not abuse its discretion by denying the request for a continuance.

FACTS

Christoffersen, a university professor, sued Soka for alleged religious discrimination and age discrimination after Soka denied her application for tenure. Christoffersen alleged she was denied tenure because: (1) she refused to join a Buddhist organization, Soka Gakkai International-USA (Soka Gakkai); and (2) she was 62 years old at the time of her tenure denial.Christoffersen's initial complaint was filed on May 22, 2008, and her first amended complaint was filed September 4, 2008. Soka filed an answer to the first amended complaint on February 4, 2009.

Motion for Summary Judgment

On April 24, 2009, Soka filed a motion for summary judgment, noticing the hearing for September 4, 2009. Soka asserted Christoffersen could not establish a prima facie case of discrimination because Soka had legitimate, nondiscriminatory reasons for its decision to deny tenure to Christoffersen, and because there was no evidence the stated reasons for the decision were pretextual.

Included with Soka's summary judgment papers were declarations by several Soka officials involved in the tenure process. For instance, Provost Tomoko Takahashi declared in relevant part: "Dr. Christoffersen was one of four candidates being considered for tenure in Spring 2008, whose applications I reviewed. Neither religion nor age played any role in my decision regarding tenure for any of the candidates. In fact, at all times during the Spring 2008 tenure review process, I did not know the religion or age of any of the four candidates who were being considered for tenure. The three other candidates were granted tenure."

Also included in the summary judgment papers were declarations executed by the three professors who received tenure in the spring of 2008. Professor Edward Lowe attested: he was granted tenure in the spring of 2008; he was not and is not a member of the religious organization Soka Gakkai; he was 41 years old in the spring of 2008; and he had no knowledge that religion or age played a role in his tenure application. Professor XiaoXing Liu and Professor Hiroshi Matsumoto, both awarded tenure in the spring of 2008 at ages 56 and 50, respectively, also attested to their lack of Soka Gakkai membership and the absence of religion or age as a factor in the tenure application process.

Discovery

Christoffersen never served any written discovery requests (i.e., interrogatories, inspection demands, or requests for admission) during the pendency of the lawsuit.On July 22, 2009, Christoffersen served deposition notices (set for August 5-7) for four Soka-affiliated individuals: Dean of Faculty Edward Feasel, Provost Tomoko Takahashi, Professor Phat Vu, and Professor Gail Thomas. After discussion by the parties as to witness availability, the depositions were scheduled for August 6, August 7, August 12, and August 13. Nevertheless, on August 11, Christoffersen called off the depositions of Professor Thomas and Dean Feasel, claiming the depositions could not proceed without the production of records pertaining to the professors who received tenure in the spring of 2008.

The deposition notices specified certain categories of documents to be produced at the depositions. The Dean Feasel notice included (among 25 separate requests) requests for: "documents which show that `neither religion nor age played any role in my decision regarding tenure for any of the candidates'"; "documents which show that `in fact, at all times during spring 2008 tenure review process, I did not know the religion or age of any of the four candidates who were being considered for tenure'"; and "documents upon which you relied to grant the three other candidates tenure." The notice for Provost Takahashi included similar document requests among the 25 categories requested. The other two deposition notices did not request documents pertaining to the other spring 2008 candidates for tenure.

Ex Parte Application

On August 13, 2009, Christoffersen filed an ex parte application, seeking the following relief: (1) an order compelling Soka to produce certain "tenure packets," which consisted of documents pertaining to the successful tenure applications of professors who were granted tenure at the same time Soka denied tenure to Christoffersen; and (2) an order continuing the summary judgment hearing.

In addition to a memorandum of points and authorities, Christoffersen's attorney, Maryam Atighechi, filed a separate document in support of the ex parte application. Although this document was titled "Declaration of Maryam Atighechi," it was not executed under penalty of perjury.

The document stated as follows: "1. I am an attorney at law . . . . All of the statements made herein are of my own personal knowledge and, if called upon to testify thereto could, and would, do so competently. [¶] 2. [I provided sufficient ex parte notice to counsel for opposing parties.] [¶] 3. The application to continue the Motion for Summary Judgment is made in good faith. At the deposition of Provost Tomoko Takahashi Plaintiff learned that the Provost's decision to grant or deny an applicant's tenure was inconsistent with the [Rank and Tenure Committee's] recommendations. [¶] 4. Plaintiff needs further discovery in order to properly oppose Soka University's Motion for Summary Judgment.""5. The discovery plaintiff is requesting are the documents pertaining to 1) Application for tenure 2) [Rank and Tenure Committee] report and notes 3) [university-wide University Rank and Tenure Committee] report and notes 4) Dean Feasel's reports and notes 5) Provost Tomoko Takahashi's decision 6) IDEA evaluations for the five individuals granted tenure.""6. Soka University provided supporting declarations from two applicants who were granted tenure alleging that neither age nor religion played a role in granting them tenure. [¶] 7. Plaintiff needs to evaluate the tenure packet to determine the basis for granting them tenure. This is especially true since at the Provosts deposition she admitted that the [Rank and Tenure Committee] recommended denial of tenure for certain applicants including Hiroshimi Matsumoto. [¶] 8. A continuance is needed to obtain facts essential to oppose the motion for summary judgment."

The court denied the ex parte application by way of a minute order dated August 14, 2009. Christoffersen represents in her brief that the court "did not provide a reason as to the denial of the ex parte application and, after reproaching counsel for Christoffersen for generating paperwork, instructed that the request for continuance be made in the Opposition to Motion for Summary Judgment." Christoffersen elected to proceed on appeal without a reporter's transcript. Thus, it is impossible for this court to consider what was said by the court at the ex parte hearing.

Opposition to Summary Judgment

One week later, Christoffersen filed her opposition to Soka's summary judgment motion. In her memorandum of points and authorities, Christoffersen repeated the argument she raised in her ex parte application: the court should compel production of tenure packets for those professors who received tenure contemporaneously with Christoffersen's rejection and the court should continue the summary judgment hearing to allow her time to review the tenure packets.

Attorney Maryam Ateghechi filed a declaration (under penalty of perjury) in opposition to Soka's motion for summary judgment. But this declaration made no mention of the need for additional evidence and a continuance. Instead, Ateghechi purported to authenticate various exhibits (e.g., deposition transcript excerpts, documents obtained during the litigation or from public sources) for purposes of opposing the motion for summary judgment on the merits.

Ruling

The court granted Soka's summary judgment motion. The court explained its denial of the request for continuance in a written order as follows: "Plaintiff has failed to submit a declaration detailing what facts she intended to obtain to oppose the motion and why such evidence could not be presented at the present time. In addition, plaintiff has not demonstrated reasonable diligence in discovery. This motion was filed in April." As noted above, Christoffersen elected to proceed without a reporter's transcript; thus, we are unable to consider what might have been said at the summary judgment hearing. The court entered judgment on September 29, 2009.

Christoffersen asserts the court erred in granting summary judgment. Her sole argument is that the court should have continued the summary judgment hearing to allow her time to discover additional facts to oppose the motion.3"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, 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." (§ 437c, subd. (h), italics added.)A court must provide relief to a party opposing summary judgment if a proper showing is made by affidavit. (Yuzon v. Collins (2004) 116 Cal.App.4th 149, 167.) "Continuance of a summary judgment hearing is not mandatory, however, when no affidavit is submitted or when the submitted affidavit fails to make the necessary showing under section 437c, subdivision (h). [Citations.] Thus, in the absence of an affidavit that requires a continuance under section 437c, subdivision (h), we review the trial court's denial of appellant's request for a continuance for abuse of discretion." (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 254 (Cooksey).)"A declaration in support of a request for continuance under section 437c, subdivision (h), 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. [Citations.]' [Citation.] . . . `It is not sufficient under the statute merely to indicate further discovery or investigation is contemplated. The statute makes it a condition that the party moving for a continuance show "facts essential to justify opposition may exist."'" (Cooksey, supra, 123 Cal.App.4th at p. 254.) A lack of diligence in pursuing discovery is a recognized factor supporting the denial of a continuance request. (Id. at p. 257.) "A good faith showing that further discovery is needed to oppose summary judgment requires some justification for why such discovery could not have been completed sooner." (Ibid.)

Here, Christoffersen failed to comply with the most basic aspect of the requirements of section 437c, subdivision (h) — submission of an affidavit pertaining to the need for a continuance. (See Mahoney v. Southland Mental Health Associates Medical Group (1990) 223 Cal.App.3d 167, 170.) Atighechi's "declaration" in support of the ex parte application was not filed under penalty of perjury and therefore cannot be considered an "affidavit" at all. "An affidavit is a written declaration under oath . . . ." (§ 2003.) An affidavit (or declaration) executed in California should include a representation "in substantially the following form: [¶] . . . `I certify (or declare) under penalty of perjury that the foregoing is true and correct' . . . ." (§ 2015.5, subd. (a).)

Atighechi's declaration in opposition to the summary judgment motion had no bearing on the issue of a continuance. Material in a memorandum of points and authorities or argument raised orally is insufficient to meet the requirements of section 437c, subdivision (h). (Ambrose v. Michelin North America, Inc. (2005) 134 Cal.App.4th 1350, 1353-1354; American Continental Ins. Co. v. C & Z Timber Co. (1987) 195 Cal.App.3d 1271, 1280.)

Moreover, even if we were to credit Ateghechi's ex parte "declaration" as an "affidavit," Christoffersen still fell short of the requirements under section 437c, subdivision (h). Ateghechi expressed a desire to obtain specific categories of documents in the "tenure packets" of several professors who received tenure at the time Christoffersen was denied tenure. But Ateghechi did not explain how obtaining such documents would provide her with "facts essential to justify opposition" as required by section 437c, subdivision (h). The tenor of the request is that exploratory discovery needed to occur, rather than Christoffersen needed more time to obtain specific facts to oppose the summary judgment motion.

Furthermore, Christoffersen made no showing of diligence in the discovery process. Her ex parte application (filed one week before her opposition to the motion for summary judgment was due) attempted to compel the production of the "tenure packets." But Christoffersen never made a freestanding request for production of such documents under section 2031.010, and only (arguably) requested such documents in deposition notices served less than a month before her opposition to summary judgment was due. Even assuming the document requests in the deposition notices can be read to include requests for the tenure packets, Christoffersen made no effort to explain why she waited so long to seek these documents.

Given the lack of a sufficient declaration, the court's decision to deny Christoffersen's request for continuance is reviewed for an abuse of discretion. The factors identified by the court in its minute order (failure to prepare proper declaration, lack of diligence) and the rest of the record provided to us suggest the court was within its discretion. Moreover, Christoffersen's failure to provide this court with a reporter's transcript precludes a review of the trial court's comments at the hearing for an abuse of discretion. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132.)

DISPOSITION

The judgment is affirmed. Soka shall recover costs incurred on appeal.WE CONCUR:O'LEARY, ACTING P. J.FYBEL, J.

Infinitepla
Infinitepla

CHRISTOFFERSEN v. SOKA UNIVERSITY OF AMERICAGAYE CHRISTOFFERSEN, Plaintiff and Appellant,v.SOKA UNIVERSITY OF AMERICA, Defendant and Respondent.

No. G042935.

Court of Appeals of California, Fourth District, Division Three.

Filed April 15, 2011.Glicker & Associates, Brian Glicker, and Maryam Atighechi; Gaye Christoffersen, in pro. per., for Plaintiff and Appellant.Musick, Peeler & Garrett, Steven D. Weinstein, David M. Lester, and Adam L. Johnson for Defendant and Respondent.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

OPINION

IKOLA, J.Plaintiff Gaye Christoffersen appeals a judgment entered in favor of defendant Soka University of America (Soka) following a successful summary judgment motion.1 Christoffersen does not contend summary judgment was inappropriate based on the evidence presented to the court in the parties' respective submissions; instead, she argues the court erred by declining to continue the summary judgment hearing to allow Christoffersen additional time for discovery pursuant to Code of Civil Procedure section 437c, subdivision (h).2 We affirm. Christoffersen failed to make an adequate showing under section 437c, subdivision (h), and the court did not abuse its discretion by denying the request for a continuance.

FACTS

Christoffersen, a university professor, sued Soka for alleged religious discrimination and age discrimination after Soka denied her application for tenure. Christoffersen alleged she was denied tenure because: (1) she refused to join a Buddhist organization, Soka Gakkai International-USA (Soka Gakkai); and (2) she was 62 years old at the time of her tenure denial.Christoffersen's initial complaint was filed on May 22, 2008, and her first amended complaint was filed September 4, 2008. Soka filed an answer to the first amended complaint on February 4, 2009.

Motion for Summary Judgment

On April 24, 2009, Soka filed a motion for summary judgment, noticing the hearing for September 4, 2009. Soka asserted Christoffersen could not establish a prima facie case of discrimination because Soka had legitimate, nondiscriminatory reasons for its decision to deny tenure to Christoffersen, and because there was no evidence the stated reasons for the decision were pretextual.

Included with Soka's summary judgment papers were declarations by several Soka officials involved in the tenure process. For instance, Provost Tomoko Takahashi declared in relevant part: "Dr. Christoffersen was one of four candidates being considered for tenure in Spring 2008, whose applications I reviewed. Neither religion nor age played any role in my decision regarding tenure for any of the candidates. In fact, at all times during the Spring 2008 tenure review process, I did not know the religion or age of any of the four candidates who were being considered for tenure. The three other candidates were granted tenure."

Also included in the summary judgment papers were declarations executed by the three professors who received tenure in the spring of 2008. Professor Edward Lowe attested: he was granted tenure in the spring of 2008; he was not and is not a member of the religious organization Soka Gakkai; he was 41 years old in the spring of 2008; and he had no knowledge that religion or age played a role in his tenure application. Professor XiaoXing Liu and Professor Hiroshi Matsumoto, both awarded tenure in the spring of 2008 at ages 56 and 50, respectively, also attested to their lack of Soka Gakkai membership and the absence of religion or age as a factor in the tenure application process.

Discovery

Christoffersen never served any written discovery requests (i.e., interrogatories, inspection demands, or requests for admission) during the pendency of the lawsuit.On July 22, 2009, Christoffersen served deposition notices (set for August 5-7) for four Soka-affiliated individuals: Dean of Faculty Edward Feasel, Provost Tomoko Takahashi, Professor Phat Vu, and Professor Gail Thomas. After discussion by the parties as to witness availability, the depositions were scheduled for August 6, August 7, August 12, and August 13. Nevertheless, on August 11, Christoffersen called off the depositions of Professor Thomas and Dean Feasel, claiming the depositions could not proceed without the production of records pertaining to the professors who received tenure in the spring of 2008.

The deposition notices specified certain categories of documents to be produced at the depositions. The Dean Feasel notice included (among 25 separate requests) requests for: "documents which show that `neither religion nor age played any role in my decision regarding tenure for any of the candidates'"; "documents which show that `in fact, at all times during spring 2008 tenure review process, I did not know the religion or age of any of the four candidates who were being considered for tenure'"; and "documents upon which you relied to grant the three other candidates tenure." The notice for Provost Takahashi included similar document requests among the 25 categories requested. The other two deposition notices did not request documents pertaining to the other spring 2008 candidates for tenure.

Ex Parte Application

On August 13, 2009, Christoffersen filed an ex parte application, seeking the following relief: (1) an order compelling Soka to produce certain "tenure packets," which consisted of documents pertaining to the successful tenure applications of professors who were granted tenure at the same time Soka denied tenure to Christoffersen; and (2) an order continuing the summary judgment hearing.

In addition to a memorandum of points and authorities, Christoffersen's attorney, Maryam Atighechi, filed a separate document in support of the ex parte application. Although this document was titled "Declaration of Maryam Atighechi," it was not executed under penalty of perjury.

The document stated as follows: "1. I am an attorney at law . . . . All of the statements made herein are of my own personal knowledge and, if called upon to testify thereto could, and would, do so competently. [¶] 2. [I provided sufficient ex parte notice to counsel for opposing parties.] [¶] 3. The application to continue the Motion for Summary Judgment is made in good faith. At the deposition of Provost Tomoko Takahashi Plaintiff learned that the Provost's decision to grant or deny an applicant's tenure was inconsistent with the [Rank and Tenure Committee's] recommendations. [¶] 4. Plaintiff needs further discovery in order to properly oppose Soka University's Motion for Summary Judgment.""5. The discovery plaintiff is requesting are the documents pertaining to 1) Application for tenure 2) [Rank and Tenure Committee] report and notes 3) [university-wide University Rank and Tenure Committee] report and notes 4) Dean Feasel's reports and notes 5) Provost Tomoko Takahashi's decision 6) IDEA evaluations for the five individuals granted tenure.""6. Soka University provided supporting declarations from two applicants who were granted tenure alleging that neither age nor religion played a role in granting them tenure. [¶] 7. Plaintiff needs to evaluate the tenure packet to determine the basis for granting them tenure. This is especially true since at the Provosts deposition she admitted that the [Rank and Tenure Committee] recommended denial of tenure for certain applicants including Hiroshimi Matsumoto. [¶] 8. A continuance is needed to obtain facts essential to oppose the motion for summary judgment."

The court denied the ex parte application by way of a minute order dated August 14, 2009. Christoffersen represents in her brief that the court "did not provide a reason as to the denial of the ex parte application and, after reproaching counsel for Christoffersen for generating paperwork, instructed that the request for continuance be made in the Opposition to Motion for Summary Judgment." Christoffersen elected to proceed on appeal without a reporter's transcript. Thus, it is impossible for this court to consider what was said by the court at the ex parte hearing.

Opposition to Summary Judgment

One week later, Christoffersen filed her opposition to Soka's summary judgment motion. In her memorandum of points and authorities, Christoffersen repeated the argument she raised in her ex parte application: the court should compel production of tenure packets for those professors who received tenure contemporaneously with Christoffersen's rejection and the court should continue the summary judgment hearing to allow her time to review the tenure packets.

Attorney Maryam Ateghechi filed a declaration (under penalty of perjury) in opposition to Soka's motion for summary judgment. But this declaration made no mention of the need for additional evidence and a continuance. Instead, Ateghechi purported to authenticate various exhibits (e.g., deposition transcript excerpts, documents obtained during the litigation or from public sources) for purposes of opposing the motion for summary judgment on the merits.

Ruling

The court granted Soka's summary judgment motion. The court explained its denial of the request for continuance in a written order as follows: "Plaintiff has failed to submit a declaration detailing what facts she intended to obtain to oppose the motion and why such evidence could not be presented at the present time. In addition, plaintiff has not demonstrated reasonable diligence in discovery. This motion was filed in April." As noted above, Christoffersen elected to proceed without a reporter's transcript; thus, we are unable to consider what might have been said at the summary judgment hearing. The court entered judgment on September 29, 2009.

Christoffersen asserts the court erred in granting summary judgment. Her sole argument is that the court should have continued the summary judgment hearing to allow her time to discover additional facts to oppose the motion.3"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, 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." (§ 437c, subd. (h), italics added.)A court must provide relief to a party opposing summary judgment if a proper showing is made by affidavit. (Yuzon v. Collins (2004) 116 Cal.App.4th 149, 167.) "Continuance of a summary judgment hearing is not mandatory, however, when no affidavit is submitted or when the submitted affidavit fails to make the necessary showing under section 437c, subdivision (h). [Citations.] Thus, in the absence of an affidavit that requires a continuance under section 437c, subdivision (h), we review the trial court's denial of appellant's request for a continuance for abuse of discretion." (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 254 (Cooksey).)"A declaration in support of a request for continuance under section 437c, subdivision (h), 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. [Citations.]' [Citation.] . . . `It is not sufficient under the statute merely to indicate further discovery or investigation is contemplated. The statute makes it a condition that the party moving for a continuance show "facts essential to justify opposition may exist."'" (Cooksey, supra, 123 Cal.App.4th at p. 254.) A lack of diligence in pursuing discovery is a recognized factor supporting the denial of a continuance request. (Id. at p. 257.) "A good faith showing that further discovery is needed to oppose summary judgment requires some justification for why such discovery could not have been completed sooner." (Ibid.)

Here, Christoffersen failed to comply with the most basic aspect of the requirements of section 437c, subdivision (h) — submission of an affidavit pertaining to the need for a continuance. (See Mahoney v. Southland Mental Health Associates Medical Group (1990) 223 Cal.App.3d 167, 170.) Atighechi's "declaration" in support of the ex parte application was not filed under penalty of perjury and therefore cannot be considered an "affidavit" at all. "An affidavit is a written declaration under oath . . . ." (§ 2003.) An affidavit (or declaration) executed in California should include a representation "in substantially the following form: [¶] . . . `I certify (or declare) under penalty of perjury that the foregoing is true and correct' . . . ." (§ 2015.5, subd. (a).)

Atighechi's declaration in opposition to the summary judgment motion had no bearing on the issue of a continuance. Material in a memorandum of points and authorities or argument raised orally is insufficient to meet the requirements of section 437c, subdivision (h). (Ambrose v. Michelin North America, Inc. (2005) 134 Cal.App.4th 1350, 1353-1354; American Continental Ins. Co. v. C & Z Timber Co. (1987) 195 Cal.App.3d 1271, 1280.)

Moreover, even if we were to credit Ateghechi's ex parte "declaration" as an "affidavit," Christoffersen still fell short of the requirements under section 437c, subdivision (h). Ateghechi expressed a desire to obtain specific categories of documents in the "tenure packets" of several professors who received tenure at the time Christoffersen was denied tenure. But Ateghechi did not explain how obtaining such documents would provide her with "facts essential to justify opposition" as required by section 437c, subdivision (h). The tenor of the request is that exploratory discovery needed to occur, rather than Christoffersen needed more time to obtain specific facts to oppose the summary judgment motion.

Furthermore, Christoffersen made no showing of diligence in the discovery process. Her ex parte application (filed one week before her opposition to the motion for summary judgment was due) attempted to compel the production of the "tenure packets." But Christoffersen never made a freestanding request for production of such documents under section 2031.010, and only (arguably) requested such documents in deposition notices served less than a month before her opposition to summary judgment was due. Even assuming the document requests in the deposition notices can be read to include requests for the tenure packets, Christoffersen made no effort to explain why she waited so long to seek these documents.

Given the lack of a sufficient declaration, the court's decision to deny Christoffersen's request for continuance is reviewed for an abuse of discretion. The factors identified by the court in its minute order (failure to prepare proper declaration, lack of diligence) and the rest of the record provided to us suggest the court was within its discretion. Moreover, Christoffersen's failure to provide this court with a reporter's transcript precludes a review of the trial court's comments at the hearing for an abuse of discretion. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132.)

DISPOSITION

The judgment is affirmed. Soka shall recover costs incurred on appeal.WE CONCUR:O'LEARY, ACTING P. J.FYBEL, J.

observer
observer

Does anyone else find it amusing that so many supposedly former sgi members are commenting here (or youtube, or any other thread with sgi related topics), even though they claim that they want nothing else to do with the sgi because it's a cult?

And they all say the same thing... "I'm a former sgi-member, they treated me like shit, they are a cult, now i'm free, and i love commenting on sgi topic threads"

If I really didn't like something I don't think I'd waste my time like that... just sayin. It takes some effort to find these things.

theremonstratiion
theremonstratiion

For those not familair with the way that that SGI has done things over the years please understand that it has already shot itself in the foot and will bleed itself to death. On the surface it is one thing and behind closed doors it is another. It is not a case of persecution of Buddhism it is a twisting of Nichiren Buddhism that is the real issue here---and that Buddhiusmn in the American Nichiren Buddhists need not conform to their new teachings which uses Buddhiskm as a front for politics and money gathering. It is a disgrace to twist real Buddhism as they are doing, Se the videos on the youtube channel: thermonstration

Zhenglish33
Zhenglish33

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guest
guest

southwell settled for over 7 figures

Zhenglish29
Zhenglish29

Finally (48 hours) time limit to buy.

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Buy addresses---- tntn.usTips (48 hours after the special product is invalid)

beizhua
beizhua

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Guest
Guest

It is puzzling to non-cult members how a cult's credibility can be established by an outpouring of hatred, demonization, and implied threats of violence. Yet, it is very common for Soka Gakkai to mobilize members to engage in demonization and character assassination of someone perceived to be a Soka Gakkai critic. Among cults this probably makes sense. Soka Gakkai demonized Nichiren shoshu even though they had much doctrine in common such as belief in “hakkō ichiu”. Nichiren shoshu has demonized Soka Gakkai. This may explain the previous question "are you a Temple member?"Soka Gakkai demonized Aum Shinrikyo, although they shared many characteristics. Aum Shinrikyo was the group that released sarin in the Tokyo subway in 1995. According to the Japan Times, Aum Shirikyo had many Soka Gakkai members in it, and its self-defense team had been trained by Soka Gakkai's security forces. ("Soka Gakkai's French Connection," Japan Times, November 4, 1995). Aum Shinrikyo had tried to assassinate Daisaku Ikeda. One person in this OC Weekly comments section has mentioned Soka Gakkai's "Thugs Division" which must be the security forces. Another person stated that Soka Gakkai doesn't need the yakuza because it has its own troops. I wonder if these people are licensed to be thugs in the US.As an American non-cult member, this kind of demonization seems out of place here in Orange County. The comments section [numbering 360+ to date] demonstrates that Soka Gakkai can mobilize members in a no-holds-barred frenzy which is hard to understand for anyone who is not a member of Aum Shinrikyo, Soka Gakkai, or Nichiren shoshu. This outpouring of maliciousness has said much more about Soka Gakkai than any critic could have.

TJ
TJ

*paste

TJ
TJ

Can I copy to edit and past somewhere about the numbers?

Guest
Guest

Soka University writes its own entry in wikipedia and the Soka Gakkai internet scrubbing committee makes sure 24/7 that no one else enters any critical comments on the university. Newsweek states that it wants to provide an amusing “quick but colorful snapshot of today’s most interesting schools,” relying on a university's own description of itself. Newsweek's blurb on Soka University is straight from the university's PR materials which are colorful. There is no methodology used and no real ranking of schools. By comparison, U.S. News & World Report college rankings are based upon peer review of universities by reviewers not at the university they are reviewing. US News does not mention Soka U. Soka University was included in Newsweek's categories of 'small', 'terrific weather near the beach', 'suburban' and 'diversity'. It is not a serious rating of the university. It does not add to Soka University's credibility to say that it is very small, more colorful than a university should be, and has terrific weather.

TJ
TJ

CHRISTOFFERSEN v. SOKA UNIVERSITY OF AMERICAGAYE CHRISTOFFERSEN, Plaintiff and Appellant,v.SOKA UNIVERSITY OF AMERICA, Defendant and Respondent.

No. G042935.

Court of Appeals of California, Fourth District, Division Three.

Filed April 15, 2011.Glicker & Associates, Brian Glicker, and Maryam Atighechi; Gaye Christoffersen, in pro. per., for Plaintiff and Appellant.Musick, Peeler & Garrett, Steven D. Weinstein, David M. Lester, and Adam L. Johnson for Defendant and Respondent.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

OPINION

IKOLA, J.Plaintiff Gaye Christoffersen appeals a judgment entered in favor of defendant Soka University of America (Soka) following a successful summary judgment motion.1 Christoffersen does not contend summary judgment was inappropriate based on the evidence presented to the court in the parties' respective submissions; instead, she argues the court erred by declining to continue the summary judgment hearing to allow Christoffersen additional time for discovery pursuant to Code of Civil Procedure section 437c, subdivision (h).2 We affirm. Christoffersen failed to make an adequate showing under section 437c, subdivision (h), and the court did not abuse its discretion by denying the request for a continuance.

FACTS

Christoffersen, a university professor, sued Soka for alleged religious discrimination and age discrimination after Soka denied her application for tenure. Christoffersen alleged she was denied tenure because: (1) she refused to join a Buddhist organization, Soka Gakkai International-USA (Soka Gakkai); and (2) she was 62 years old at the time of her tenure denial.Christoffersen's initial complaint was filed on May 22, 2008, and her first amended complaint was filed September 4, 2008. Soka filed an answer to the first amended complaint on February 4, 2009.

Motion for Summary Judgment

On April 24, 2009, Soka filed a motion for summary judgment, noticing the hearing for September 4, 2009. Soka asserted Christoffersen could not establish a prima facie case of discrimination because Soka had legitimate, nondiscriminatory reasons for its decision to deny tenure to Christoffersen, and because there was no evidence the stated reasons for the decision were pretextual.

Included with Soka's summary judgment papers were declarations by several Soka officials involved in the tenure process. For instance, Provost Tomoko Takahashi declared in relevant part: "Dr. Christoffersen was one of four candidates being considered for tenure in Spring 2008, whose applications I reviewed. Neither religion nor age played any role in my decision regarding tenure for any of the candidates. In fact, at all times during the Spring 2008 tenure review process, I did not know the religion or age of any of the four candidates who were being considered for tenure. The three other candidates were granted tenure."

Also included in the summary judgment papers were declarations executed by the three professors who received tenure in the spring of 2008. Professor Edward Lowe attested: he was granted tenure in the spring of 2008; he was not and is not a member of the religious organization Soka Gakkai; he was 41 years old in the spring of 2008; and he had no knowledge that religion or age played a role in his tenure application. Professor XiaoXing Liu and Professor Hiroshi Matsumoto, both awarded tenure in the spring of 2008 at ages 56 and 50, respectively, also attested to their lack of Soka Gakkai membership and the absence of religion or age as a factor in the tenure application process.

Discovery

Christoffersen never served any written discovery requests (i.e., interrogatories, inspection demands, or requests for admission) during the pendency of the lawsuit.On July 22, 2009, Christoffersen served deposition notices (set for August 5-7) for four Soka-affiliated individuals: Dean of Faculty Edward Feasel, Provost Tomoko Takahashi, Professor Phat Vu, and Professor Gail Thomas. After discussion by the parties as to witness availability, the depositions were scheduled for August 6, August 7, August 12, and August 13. Nevertheless, on August 11, Christoffersen called off the depositions of Professor Thomas and Dean Feasel, claiming the depositions could not proceed without the production of records pertaining to the professors who received tenure in the spring of 2008.

The deposition notices specified certain categories of documents to be produced at the depositions. The Dean Feasel notice included (among 25 separate requests) requests for: "documents which show that `neither religion nor age played any role in my decision regarding tenure for any of the candidates'"; "documents which show that `in fact, at all times during spring 2008 tenure review process, I did not know the religion or age of any of the four candidates who were being considered for tenure'"; and "documents upon which you relied to grant the three other candidates tenure." The notice for Provost Takahashi included similar document requests among the 25 categories requested. The other two deposition notices did not request documents pertaining to the other spring 2008 candidates for tenure.

Ex Parte Application

On August 13, 2009, Christoffersen filed an ex parte application, seeking the following relief: (1) an order compelling Soka to produce certain "tenure packets," which consisted of documents pertaining to the successful tenure applications of professors who were granted tenure at the same time Soka denied tenure to Christoffersen; and (2) an order continuing the summary judgment hearing.

In addition to a memorandum of points and authorities, Christoffersen's attorney, Maryam Atighechi, filed a separate document in support of the ex parte application. Although this document was titled "Declaration of Maryam Atighechi," it was not executed under penalty of perjury.

The document stated as follows: "1. I am an attorney at law . . . . All of the statements made herein are of my own personal knowledge and, if called upon to testify thereto could, and would, do so competently. [¶] 2. [I provided sufficient ex parte notice to counsel for opposing parties.] [¶] 3. The application to continue the Motion for Summary Judgment is made in good faith. At the deposition of Provost Tomoko Takahashi Plaintiff learned that the Provost's decision to grant or deny an applicant's tenure was inconsistent with the [Rank and Tenure Committee's] recommendations. [¶] 4. Plaintiff needs further discovery in order to properly oppose Soka University's Motion for Summary Judgment.""5. The discovery plaintiff is requesting are the documents pertaining to 1) Application for tenure 2) [Rank and Tenure Committee] report and notes 3) [university-wide University Rank and Tenure Committee] report and notes 4) Dean Feasel's reports and notes 5) Provost Tomoko Takahashi's decision 6) IDEA evaluations for the five individuals granted tenure.""6. Soka University provided supporting declarations from two applicants who were granted tenure alleging that neither age nor religion played a role in granting them tenure. [¶] 7. Plaintiff needs to evaluate the tenure packet to determine the basis for granting them tenure. This is especially true since at the Provosts deposition she admitted that the [Rank and Tenure Committee] recommended denial of tenure for certain applicants including Hiroshimi Matsumoto. [¶] 8. A continuance is needed to obtain facts essential to oppose the motion for summary judgment."

The court denied the ex parte application by way of a minute order dated August 14, 2009. Christoffersen represents in her brief that the court "did not provide a reason as to the denial of the ex parte application and, after reproaching counsel for Christoffersen for generating paperwork, instructed that the request for continuance be made in the Opposition to Motion for Summary Judgment." Christoffersen elected to proceed on appeal without a reporter's transcript. Thus, it is impossible for this court to consider what was said by the court at the ex parte hearing.

Opposition to Summary Judgment

One week later, Christoffersen filed her opposition to Soka's summary judgment motion. In her memorandum of points and authorities, Christoffersen repeated the argument she raised in her ex parte application: the court should compel production of tenure packets for those professors who received tenure contemporaneously with Christoffersen's rejection and the court should continue the summary judgment hearing to allow her time to review the tenure packets.

Attorney Maryam Ateghechi filed a declaration (under penalty of perjury) in opposition to Soka's motion for summary judgment. But this declaration made no mention of the need for additional evidence and a continuance. Instead, Ateghechi purported to authenticate various exhibits (e.g., deposition transcript excerpts, documents obtained during the litigation or from public sources) for purposes of opposing the motion for summary judgment on the merits.

Ruling

The court granted Soka's summary judgment motion. The court explained its denial of the request for continuance in a written order as follows: "Plaintiff has failed to submit a declaration detailing what facts she intended to obtain to oppose the motion and why such evidence could not be presented at the present time. In addition, plaintiff has not demonstrated reasonable diligence in discovery. This motion was filed in April." As noted above, Christoffersen elected to proceed without a reporter's transcript; thus, we are unable to consider what might have been said at the summary judgment hearing. The court entered judgment on September 29, 2009.

Christoffersen asserts the court erred in granting summary judgment. Her sole argument is that the court should have continued the summary judgment hearing to allow her time to discover additional facts to oppose the motion.3"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, 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." (§ 437c, subd. (h), italics added.)A court must provide relief to a party opposing summary judgment if a proper showing is made by affidavit. (Yuzon v. Collins (2004) 116 Cal.App.4th 149, 167.) "Continuance of a summary judgment hearing is not mandatory, however, when no affidavit is submitted or when the submitted affidavit fails to make the necessary showing under section 437c, subdivision (h). [Citations.] Thus, in the absence of an affidavit that requires a continuance under section 437c, subdivision (h), we review the trial court's denial of appellant's request for a continuance for abuse of discretion." (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 254 (Cooksey).)"A declaration in support of a request for continuance under section 437c, subdivision (h), 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. [Citations.]' [Citation.] . . . `It is not sufficient under the statute merely to indicate further discovery or investigation is contemplated. The statute makes it a condition that the party moving for a continuance show "facts essential to justify opposition may exist."'" (Cooksey, supra, 123 Cal.App.4th at p. 254.) A lack of diligence in pursuing discovery is a recognized factor supporting the denial of a continuance request. (Id. at p. 257.) "A good faith showing that further discovery is needed to oppose summary judgment requires some justification for why such discovery could not have been completed sooner." (Ibid.)

Here, Christoffersen failed to comply with the most basic aspect of the requirements of section 437c, subdivision (h) — submission of an affidavit pertaining to the need for a continuance. (See Mahoney v. Southland Mental Health Associates Medical Group (1990) 223 Cal.App.3d 167, 170.) Atighechi's "declaration" in support of the ex parte application was not filed under penalty of perjury and therefore cannot be considered an "affidavit" at all. "An affidavit is a written declaration under oath . . . ." (§ 2003.) An affidavit (or declaration) executed in California should include a representation "in substantially the following form: [¶] . . . `I certify (or declare) under penalty of perjury that the foregoing is true and correct' . . . ." (§ 2015.5, subd. (a).)

Atighechi's declaration in opposition to the summary judgment motion had no bearing on the issue of a continuance. Material in a memorandum of points and authorities or argument raised orally is insufficient to meet the requirements of section 437c, subdivision (h). (Ambrose v. Michelin North America, Inc. (2005) 134 Cal.App.4th 1350, 1353-1354; American Continental Ins. Co. v. C & Z Timber Co. (1987) 195 Cal.App.3d 1271, 1280.)

Moreover, even if we were to credit Ateghechi's ex parte "declaration" as an "affidavit," Christoffersen still fell short of the requirements under section 437c, subdivision (h). Ateghechi expressed a desire to obtain specific categories of documents in the "tenure packets" of several professors who received tenure at the time Christoffersen was denied tenure. But Ateghechi did not explain how obtaining such documents would provide her with "facts essential to justify opposition" as required by section 437c, subdivision (h). The tenor of the request is that exploratory discovery needed to occur, rather than Christoffersen needed more time to obtain specific facts to oppose the summary judgment motion.

Furthermore, Christoffersen made no showing of diligence in the discovery process. Her ex parte application (filed one week before her opposition to the motion for summary judgment was due) attempted to compel the production of the "tenure packets." But Christoffersen never made a freestanding request for production of such documents under section 2031.010, and only (arguably) requested such documents in deposition notices served less than a month before her opposition to summary judgment was due. Even assuming the document requests in the deposition notices can be read to include requests for the tenure packets, Christoffersen made no effort to explain why she waited so long to seek these documents.

Given the lack of a sufficient declaration, the court's decision to deny Christoffersen's request for continuance is reviewed for an abuse of discretion. The factors identified by the court in its minute order (failure to prepare proper declaration, lack of diligence) and the rest of the record provided to us suggest the court was within its discretion. Moreover, Christoffersen's failure to provide this court with a reporter's transcript precludes a review of the trial court's comments at the hearing for an abuse of discretion. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132.)

DISPOSITION

The judgment is affirmed. Soka shall recover costs incurred on appeal.WE CONCUR:O'LEARY, ACTING P. J.FYBEL, J.

Infinitepla
Infinitepla

CHRISTOFFERSEN v. SOKA UNIVERSITY OF AMERICAGAYE CHRISTOFFERSEN, Plaintiff and Appellant,v.SOKA UNIVERSITY OF AMERICA, Defendant and Respondent.

No. G042935.

Court of Appeals of California, Fourth District, Division Three.

Filed April 15, 2011.Glicker & Associates, Brian Glicker, and Maryam Atighechi; Gaye Christoffersen, in pro. per., for Plaintiff and Appellant.Musick, Peeler & Garrett, Steven D. Weinstein, David M. Lester, and Adam L. Johnson for Defendant and Respondent.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

OPINION

IKOLA, J.Plaintiff Gaye Christoffersen appeals a judgment entered in favor of defendant Soka University of America (Soka) following a successful summary judgment motion.1 Christoffersen does not contend summary judgment was inappropriate based on the evidence presented to the court in the parties' respective submissions; instead, she argues the court erred by declining to continue the summary judgment hearing to allow Christoffersen additional time for discovery pursuant to Code of Civil Procedure section 437c, subdivision (h).2 We affirm. Christoffersen failed to make an adequate showing under section 437c, subdivision (h), and the court did not abuse its discretion by denying the request for a continuance.

FACTS

Christoffersen, a university professor, sued Soka for alleged religious discrimination and age discrimination after Soka denied her application for tenure. Christoffersen alleged she was denied tenure because: (1) she refused to join a Buddhist organization, Soka Gakkai International-USA (Soka Gakkai); and (2) she was 62 years old at the time of her tenure denial.Christoffersen's initial complaint was filed on May 22, 2008, and her first amended complaint was filed September 4, 2008. Soka filed an answer to the first amended complaint on February 4, 2009.

Motion for Summary Judgment

On April 24, 2009, Soka filed a motion for summary judgment, noticing the hearing for September 4, 2009. Soka asserted Christoffersen could not establish a prima facie case of discrimination because Soka had legitimate, nondiscriminatory reasons for its decision to deny tenure to Christoffersen, and because there was no evidence the stated reasons for the decision were pretextual.

Included with Soka's summary judgment papers were declarations by several Soka officials involved in the tenure process. For instance, Provost Tomoko Takahashi declared in relevant part: "Dr. Christoffersen was one of four candidates being considered for tenure in Spring 2008, whose applications I reviewed. Neither religion nor age played any role in my decision regarding tenure for any of the candidates. In fact, at all times during the Spring 2008 tenure review process, I did not know the religion or age of any of the four candidates who were being considered for tenure. The three other candidates were granted tenure."

Also included in the summary judgment papers were declarations executed by the three professors who received tenure in the spring of 2008. Professor Edward Lowe attested: he was granted tenure in the spring of 2008; he was not and is not a member of the religious organization Soka Gakkai; he was 41 years old in the spring of 2008; and he had no knowledge that religion or age played a role in his tenure application. Professor XiaoXing Liu and Professor Hiroshi Matsumoto, both awarded tenure in the spring of 2008 at ages 56 and 50, respectively, also attested to their lack of Soka Gakkai membership and the absence of religion or age as a factor in the tenure application process.

Discovery

Christoffersen never served any written discovery requests (i.e., interrogatories, inspection demands, or requests for admission) during the pendency of the lawsuit.On July 22, 2009, Christoffersen served deposition notices (set for August 5-7) for four Soka-affiliated individuals: Dean of Faculty Edward Feasel, Provost Tomoko Takahashi, Professor Phat Vu, and Professor Gail Thomas. After discussion by the parties as to witness availability, the depositions were scheduled for August 6, August 7, August 12, and August 13. Nevertheless, on August 11, Christoffersen called off the depositions of Professor Thomas and Dean Feasel, claiming the depositions could not proceed without the production of records pertaining to the professors who received tenure in the spring of 2008.

The deposition notices specified certain categories of documents to be produced at the depositions. The Dean Feasel notice included (among 25 separate requests) requests for: "documents which show that `neither religion nor age played any role in my decision regarding tenure for any of the candidates'"; "documents which show that `in fact, at all times during spring 2008 tenure review process, I did not know the religion or age of any of the four candidates who were being considered for tenure'"; and "documents upon which you relied to grant the three other candidates tenure." The notice for Provost Takahashi included similar document requests among the 25 categories requested. The other two deposition notices did not request documents pertaining to the other spring 2008 candidates for tenure.

Ex Parte Application

On August 13, 2009, Christoffersen filed an ex parte application, seeking the following relief: (1) an order compelling Soka to produce certain "tenure packets," which consisted of documents pertaining to the successful tenure applications of professors who were granted tenure at the same time Soka denied tenure to Christoffersen; and (2) an order continuing the summary judgment hearing.

In addition to a memorandum of points and authorities, Christoffersen's attorney, Maryam Atighechi, filed a separate document in support of the ex parte application. Although this document was titled "Declaration of Maryam Atighechi," it was not executed under penalty of perjury.

The document stated as follows: "1. I am an attorney at law . . . . All of the statements made herein are of my own personal knowledge and, if called upon to testify thereto could, and would, do so competently. [¶] 2. [I provided sufficient ex parte notice to counsel for opposing parties.] [¶] 3. The application to continue the Motion for Summary Judgment is made in good faith. At the deposition of Provost Tomoko Takahashi Plaintiff learned that the Provost's decision to grant or deny an applicant's tenure was inconsistent with the [Rank and Tenure Committee's] recommendations. [¶] 4. Plaintiff needs further discovery in order to properly oppose Soka University's Motion for Summary Judgment.""5. The discovery plaintiff is requesting are the documents pertaining to 1) Application for tenure 2) [Rank and Tenure Committee] report and notes 3) [university-wide University Rank and Tenure Committee] report and notes 4) Dean Feasel's reports and notes 5) Provost Tomoko Takahashi's decision 6) IDEA evaluations for the five individuals granted tenure.""6. Soka University provided supporting declarations from two applicants who were granted tenure alleging that neither age nor religion played a role in granting them tenure. [¶] 7. Plaintiff needs to evaluate the tenure packet to determine the basis for granting them tenure. This is especially true since at the Provosts deposition she admitted that the [Rank and Tenure Committee] recommended denial of tenure for certain applicants including Hiroshimi Matsumoto. [¶] 8. A continuance is needed to obtain facts essential to oppose the motion for summary judgment."

The court denied the ex parte application by way of a minute order dated August 14, 2009. Christoffersen represents in her brief that the court "did not provide a reason as to the denial of the ex parte application and, after reproaching counsel for Christoffersen for generating paperwork, instructed that the request for continuance be made in the Opposition to Motion for Summary Judgment." Christoffersen elected to proceed on appeal without a reporter's transcript. Thus, it is impossible for this court to consider what was said by the court at the ex parte hearing.

Opposition to Summary Judgment

One week later, Christoffersen filed her opposition to Soka's summary judgment motion. In her memorandum of points and authorities, Christoffersen repeated the argument she raised in her ex parte application: the court should compel production of tenure packets for those professors who received tenure contemporaneously with Christoffersen's rejection and the court should continue the summary judgment hearing to allow her time to review the tenure packets.

Attorney Maryam Ateghechi filed a declaration (under penalty of perjury) in opposition to Soka's motion for summary judgment. But this declaration made no mention of the need for additional evidence and a continuance. Instead, Ateghechi purported to authenticate various exhibits (e.g., deposition transcript excerpts, documents obtained during the litigation or from public sources) for purposes of opposing the motion for summary judgment on the merits.

Ruling

The court granted Soka's summary judgment motion. The court explained its denial of the request for continuance in a written order as follows: "Plaintiff has failed to submit a declaration detailing what facts she intended to obtain to oppose the motion and why such evidence could not be presented at the present time. In addition, plaintiff has not demonstrated reasonable diligence in discovery. This motion was filed in April." As noted above, Christoffersen elected to proceed without a reporter's transcript; thus, we are unable to consider what might have been said at the summary judgment hearing. The court entered judgment on September 29, 2009.

Christoffersen asserts the court erred in granting summary judgment. Her sole argument is that the court should have continued the summary judgment hearing to allow her time to discover additional facts to oppose the motion.3"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, 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." (§ 437c, subd. (h), italics added.)A court must provide relief to a party opposing summary judgment if a proper showing is made by affidavit. (Yuzon v. Collins (2004) 116 Cal.App.4th 149, 167.) "Continuance of a summary judgment hearing is not mandatory, however, when no affidavit is submitted or when the submitted affidavit fails to make the necessary showing under section 437c, subdivision (h). [Citations.] Thus, in the absence of an affidavit that requires a continuance under section 437c, subdivision (h), we review the trial court's denial of appellant's request for a continuance for abuse of discretion." (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 254 (Cooksey).)"A declaration in support of a request for continuance under section 437c, subdivision (h), 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. [Citations.]' [Citation.] . . . `It is not sufficient under the statute merely to indicate further discovery or investigation is contemplated. The statute makes it a condition that the party moving for a continuance show "facts essential to justify opposition may exist."'" (Cooksey, supra, 123 Cal.App.4th at p. 254.) A lack of diligence in pursuing discovery is a recognized factor supporting the denial of a continuance request. (Id. at p. 257.) "A good faith showing that further discovery is needed to oppose summary judgment requires some justification for why such discovery could not have been completed sooner." (Ibid.)

Here, Christoffersen failed to comply with the most basic aspect of the requirements of section 437c, subdivision (h) — submission of an affidavit pertaining to the need for a continuance. (See Mahoney v. Southland Mental Health Associates Medical Group (1990) 223 Cal.App.3d 167, 170.) Atighechi's "declaration" in support of the ex parte application was not filed under penalty of perjury and therefore cannot be considered an "affidavit" at all. "An affidavit is a written declaration under oath . . . ." (§ 2003.) An affidavit (or declaration) executed in California should include a representation "in substantially the following form: [¶] . . . `I certify (or declare) under penalty of perjury that the foregoing is true and correct' . . . ." (§ 2015.5, subd. (a).)

Atighechi's declaration in opposition to the summary judgment motion had no bearing on the issue of a continuance. Material in a memorandum of points and authorities or argument raised orally is insufficient to meet the requirements of section 437c, subdivision (h). (Ambrose v. Michelin North America, Inc. (2005) 134 Cal.App.4th 1350, 1353-1354; American Continental Ins. Co. v. C & Z Timber Co. (1987) 195 Cal.App.3d 1271, 1280.)

Moreover, even if we were to credit Ateghechi's ex parte "declaration" as an "affidavit," Christoffersen still fell short of the requirements under section 437c, subdivision (h). Ateghechi expressed a desire to obtain specific categories of documents in the "tenure packets" of several professors who received tenure at the time Christoffersen was denied tenure. But Ateghechi did not explain how obtaining such documents would provide her with "facts essential to justify opposition" as required by section 437c, subdivision (h). The tenor of the request is that exploratory discovery needed to occur, rather than Christoffersen needed more time to obtain specific facts to oppose the summary judgment motion.

Furthermore, Christoffersen made no showing of diligence in the discovery process. Her ex parte application (filed one week before her opposition to the motion for summary judgment was due) attempted to compel the production of the "tenure packets." But Christoffersen never made a freestanding request for production of such documents under section 2031.010, and only (arguably) requested such documents in deposition notices served less than a month before her opposition to summary judgment was due. Even assuming the document requests in the deposition notices can be read to include requests for the tenure packets, Christoffersen made no effort to explain why she waited so long to seek these documents.

Given the lack of a sufficient declaration, the court's decision to deny Christoffersen's request for continuance is reviewed for an abuse of discretion. The factors identified by the court in its minute order (failure to prepare proper declaration, lack of diligence) and the rest of the record provided to us suggest the court was within its discretion. Moreover, Christoffersen's failure to provide this court with a reporter's transcript precludes a review of the trial court's comments at the hearing for an abuse of discretion. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132.)

DISPOSITION

The judgment is affirmed. Soka shall recover costs incurred on appeal.WE CONCUR:O'LEARY, ACTING P. J.FYBEL, J.

Infinitepla
Infinitepla

CHRISTOFFERSEN v. SOKA UNIVERSITY OF AMERICAGAYE CHRISTOFFERSEN, Plaintiff and Appellant,v.SOKA UNIVERSITY OF AMERICA, Defendant and Respondent.

No. G042935.

Court of Appeals of California, Fourth District, Division Three.

Filed April 15, 2011.Glicker & Associates, Brian Glicker, and Maryam Atighechi; Gaye Christoffersen, in pro. per., for Plaintiff and Appellant.Musick, Peeler & Garrett, Steven D. Weinstein, David M. Lester, and Adam L. Johnson for Defendant and Respondent.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

OPINION

IKOLA, J.Plaintiff Gaye Christoffersen appeals a judgment entered in favor of defendant Soka University of America (Soka) following a successful summary judgment motion.1 Christoffersen does not contend summary judgment was inappropriate based on the evidence presented to the court in the parties' respective submissions; instead, she argues the court erred by declining to continue the summary judgment hearing to allow Christoffersen additional time for discovery pursuant to Code of Civil Procedure section 437c, subdivision (h).2 We affirm. Christoffersen failed to make an adequate showing under section 437c, subdivision (h), and the court did not abuse its discretion by denying the request for a continuance.

FACTS

Christoffersen, a university professor, sued Soka for alleged religious discrimination and age discrimination after Soka denied her application for tenure. Christoffersen alleged she was denied tenure because: (1) she refused to join a Buddhist organization, Soka Gakkai International-USA (Soka Gakkai); and (2) she was 62 years old at the time of her tenure denial.Christoffersen's initial complaint was filed on May 22, 2008, and her first amended complaint was filed September 4, 2008. Soka filed an answer to the first amended complaint on February 4, 2009.

Motion for Summary Judgment

On April 24, 2009, Soka filed a motion for summary judgment, noticing the hearing for September 4, 2009. Soka asserted Christoffersen could not establish a prima facie case of discrimination because Soka had legitimate, nondiscriminatory reasons for its decision to deny tenure to Christoffersen, and because there was no evidence the stated reasons for the decision were pretextual.

Included with Soka's summary judgment papers were declarations by several Soka officials involved in the tenure process. For instance, Provost Tomoko Takahashi declared in relevant part: "Dr. Christoffersen was one of four candidates being considered for tenure in Spring 2008, whose applications I reviewed. Neither religion nor age played any role in my decision regarding tenure for any of the candidates. In fact, at all times during the Spring 2008 tenure review process, I did not know the religion or age of any of the four candidates who were being considered for tenure. The three other candidates were granted tenure."

Also included in the summary judgment papers were declarations executed by the three professors who received tenure in the spring of 2008. Professor Edward Lowe attested: he was granted tenure in the spring of 2008; he was not and is not a member of the religious organization Soka Gakkai; he was 41 years old in the spring of 2008; and he had no knowledge that religion or age played a role in his tenure application. Professor XiaoXing Liu and Professor Hiroshi Matsumoto, both awarded tenure in the spring of 2008 at ages 56 and 50, respectively, also attested to their lack of Soka Gakkai membership and the absence of religion or age as a factor in the tenure application process.

Discovery

Christoffersen never served any written discovery requests (i.e., interrogatories, inspection demands, or requests for admission) during the pendency of the lawsuit.On July 22, 2009, Christoffersen served deposition notices (set for August 5-7) for four Soka-affiliated individuals: Dean of Faculty Edward Feasel, Provost Tomoko Takahashi, Professor Phat Vu, and Professor Gail Thomas. After discussion by the parties as to witness availability, the depositions were scheduled for August 6, August 7, August 12, and August 13. Nevertheless, on August 11, Christoffersen called off the depositions of Professor Thomas and Dean Feasel, claiming the depositions could not proceed without the production of records pertaining to the professors who received tenure in the spring of 2008.

The deposition notices specified certain categories of documents to be produced at the depositions. The Dean Feasel notice included (among 25 separate requests) requests for: "documents which show that `neither religion nor age played any role in my decision regarding tenure for any of the candidates'"; "documents which show that `in fact, at all times during spring 2008 tenure review process, I did not know the religion or age of any of the four candidates who were being considered for tenure'"; and "documents upon which you relied to grant the three other candidates tenure." The notice for Provost Takahashi included similar document requests among the 25 categories requested. The other two deposition notices did not request documents pertaining to the other spring 2008 candidates for tenure.

Ex Parte Application

On August 13, 2009, Christoffersen filed an ex parte application, seeking the following relief: (1) an order compelling Soka to produce certain "tenure packets," which consisted of documents pertaining to the successful tenure applications of professors who were granted tenure at the same time Soka denied tenure to Christoffersen; and (2) an order continuing the summary judgment hearing.

In addition to a memorandum of points and authorities, Christoffersen's attorney, Maryam Atighechi, filed a separate document in support of the ex parte application. Although this document was titled "Declaration of Maryam Atighechi," it was not executed under penalty of perjury.

The document stated as follows: "1. I am an attorney at law . . . . All of the statements made herein are of my own personal knowledge and, if called upon to testify thereto could, and would, do so competently. [¶] 2. [I provided sufficient ex parte notice to counsel for opposing parties.] [¶] 3. The application to continue the Motion for Summary Judgment is made in good faith. At the deposition of Provost Tomoko Takahashi Plaintiff learned that the Provost's decision to grant or deny an applicant's tenure was inconsistent with the [Rank and Tenure Committee's] recommendations. [¶] 4. Plaintiff needs further discovery in order to properly oppose Soka University's Motion for Summary Judgment.""5. The discovery plaintiff is requesting are the documents pertaining to 1) Application for tenure 2) [Rank and Tenure Committee] report and notes 3) [university-wide University Rank and Tenure Committee] report and notes 4) Dean Feasel's reports and notes 5) Provost Tomoko Takahashi's decision 6) IDEA evaluations for the five individuals granted tenure.""6. Soka University provided supporting declarations from two applicants who were granted tenure alleging that neither age nor religion played a role in granting them tenure. [¶] 7. Plaintiff needs to evaluate the tenure packet to determine the basis for granting them tenure. This is especially true since at the Provosts deposition she admitted that the [Rank and Tenure Committee] recommended denial of tenure for certain applicants including Hiroshimi Matsumoto. [¶] 8. A continuance is needed to obtain facts essential to oppose the motion for summary judgment."

The court denied the ex parte application by way of a minute order dated August 14, 2009. Christoffersen represents in her brief that the court "did not provide a reason as to the denial of the ex parte application and, after reproaching counsel for Christoffersen for generating paperwork, instructed that the request for continuance be made in the Opposition to Motion for Summary Judgment." Christoffersen elected to proceed on appeal without a reporter's transcript. Thus, it is impossible for this court to consider what was said by the court at the ex parte hearing.

Opposition to Summary Judgment

One week later, Christoffersen filed her opposition to Soka's summary judgment motion. In her memorandum of points and authorities, Christoffersen repeated the argument she raised in her ex parte application: the court should compel production of tenure packets for those professors who received tenure contemporaneously with Christoffersen's rejection and the court should continue the summary judgment hearing to allow her time to review the tenure packets.

Attorney Maryam Ateghechi filed a declaration (under penalty of perjury) in opposition to Soka's motion for summary judgment. But this declaration made no mention of the need for additional evidence and a continuance. Instead, Ateghechi purported to authenticate various exhibits (e.g., deposition transcript excerpts, documents obtained during the litigation or from public sources) for purposes of opposing the motion for summary judgment on the merits.

Ruling

The court granted Soka's summary judgment motion. The court explained its denial of the request for continuance in a written order as follows: "Plaintiff has failed to submit a declaration detailing what facts she intended to obtain to oppose the motion and why such evidence could not be presented at the present time. In addition, plaintiff has not demonstrated reasonable diligence in discovery. This motion was filed in April." As noted above, Christoffersen elected to proceed without a reporter's transcript; thus, we are unable to consider what might have been said at the summary judgment hearing. The court entered judgment on September 29, 2009.

Christoffersen asserts the court erred in granting summary judgment. Her sole argument is that the court should have continued the summary judgment hearing to allow her time to discover additional facts to oppose the motion.3"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, 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." (§ 437c, subd. (h), italics added.)A court must provide relief to a party opposing summary judgment if a proper showing is made by affidavit. (Yuzon v. Collins (2004) 116 Cal.App.4th 149, 167.) "Continuance of a summary judgment hearing is not mandatory, however, when no affidavit is submitted or when the submitted affidavit fails to make the necessary showing under section 437c, subdivision (h). [Citations.] Thus, in the absence of an affidavit that requires a continuance under section 437c, subdivision (h), we review the trial court's denial of appellant's request for a continuance for abuse of discretion." (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 254 (Cooksey).)"A declaration in support of a request for continuance under section 437c, subdivision (h), 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. [Citations.]' [Citation.] . . . `It is not sufficient under the statute merely to indicate further discovery or investigation is contemplated. The statute makes it a condition that the party moving for a continuance show "facts essential to justify opposition may exist."'" (Cooksey, supra, 123 Cal.App.4th at p. 254.) A lack of diligence in pursuing discovery is a recognized factor supporting the denial of a continuance request. (Id. at p. 257.) "A good faith showing that further discovery is needed to oppose summary judgment requires some justification for why such discovery could not have been completed sooner." (Ibid.)

Here, Christoffersen failed to comply with the most basic aspect of the requirements of section 437c, subdivision (h) — submission of an affidavit pertaining to the need for a continuance. (See Mahoney v. Southland Mental Health Associates Medical Group (1990) 223 Cal.App.3d 167, 170.) Atighechi's "declaration" in support of the ex parte application was not filed under penalty of perjury and therefore cannot be considered an "affidavit" at all. "An affidavit is a written declaration under oath . . . ." (§ 2003.) An affidavit (or declaration) executed in California should include a representation "in substantially the following form: [¶] . . . `I certify (or declare) under penalty of perjury that the foregoing is true and correct' . . . ." (§ 2015.5, subd. (a).)

Atighechi's declaration in opposition to the summary judgment motion had no bearing on the issue of a continuance. Material in a memorandum of points and authorities or argument raised orally is insufficient to meet the requirements of section 437c, subdivision (h). (Ambrose v. Michelin North America, Inc. (2005) 134 Cal.App.4th 1350, 1353-1354; American Continental Ins. Co. v. C & Z Timber Co. (1987) 195 Cal.App.3d 1271, 1280.)

Moreover, even if we were to credit Ateghechi's ex parte "declaration" as an "affidavit," Christoffersen still fell short of the requirements under section 437c, subdivision (h). Ateghechi expressed a desire to obtain specific categories of documents in the "tenure packets" of several professors who received tenure at the time Christoffersen was denied tenure. But Ateghechi did not explain how obtaining such documents would provide her with "facts essential to justify opposition" as required by section 437c, subdivision (h). The tenor of the request is that exploratory discovery needed to occur, rather than Christoffersen needed more time to obtain specific facts to oppose the summary judgment motion.

Furthermore, Christoffersen made no showing of diligence in the discovery process. Her ex parte application (filed one week before her opposition to the motion for summary judgment was due) attempted to compel the production of the "tenure packets." But Christoffersen never made a freestanding request for production of such documents under section 2031.010, and only (arguably) requested such documents in deposition notices served less than a month before her opposition to summary judgment was due. Even assuming the document requests in the deposition notices can be read to include requests for the tenure packets, Christoffersen made no effort to explain why she waited so long to seek these documents.

Given the lack of a sufficient declaration, the court's decision to deny Christoffersen's request for continuance is reviewed for an abuse of discretion. The factors identified by the court in its minute order (failure to prepare proper declaration, lack of diligence) and the rest of the record provided to us suggest the court was within its discretion. Moreover, Christoffersen's failure to provide this court with a reporter's transcript precludes a review of the trial court's comments at the hearing for an abuse of discretion. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132.)

DISPOSITION

The judgment is affirmed. Soka shall recover costs incurred on appeal.WE CONCUR:O'LEARY, ACTING P. J.FYBEL, J.

TJ
TJ

CHRISTOFFERSEN v. SOKA UNIVERSITY OF AMERICAGAYE CHRISTOFFERSEN, Plaintiff and Appellant,v.SOKA UNIVERSITY OF AMERICA, Defendant and Respondent.

No. G042935.

Court of Appeals of California, Fourth District, Division Three.

Filed April 15, 2011.Glicker & Associates, Brian Glicker, and Maryam Atighechi; Gaye Christoffersen, in pro. per., for Plaintiff and Appellant.Musick, Peeler & Garrett, Steven D. Weinstein, David M. Lester, and Adam L. Johnson for Defendant and Respondent.

Ruling

The court granted Soka's summary judgment motion. The court explained its denial of the request for continuance in a written order as follows: "Plaintiff has failed to submit a declaration detailing what facts she intended to obtain to oppose the motion and why such evidence could not be presented at the present time. In addition, plaintiff has not demonstrated reasonable diligence in discovery. This motion was filed in April." As noted above, Christoffersen elected to proceed without a reporter's transcript; thus, we are unable to consider what might have been said at the summary judgment hearing. The court entered judgment on September 29, 2009.

Christoffersen asserts the court erred in granting summary judgment. Her sole argument is that the court should have continued the summary judgment hearing to allow her time to discover additional facts to oppose the motion.3"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, 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." (§ 437c, subd. (h), italics added.)

........

Furthermore, Christoffersen made no showing of diligence in the discovery process. Her ex parte application (filed one week before her opposition to the motion for summary judgment was due) attempted to compel the production of the "tenure packets." But Christoffersen never made a freestanding request for production of such documents under section 2031.010, and only (arguably) requested such documents in deposition notices served less than a month before her opposition to summary judgment was due. Even assuming the document requests in the deposition notices can be read to include requests for the tenure packets, Christoffersen made no effort to explain why she waited so long to seek these documents.

Given the lack of a sufficient declaration, the court's decision to deny Christoffersen's request for continuance is reviewed for an abuse of discretion. The factors identified by the court in its minute order (failure to prepare proper declaration, lack of diligence) and the rest of the record provided to us suggest the court was within its discretion. Moreover, Christoffersen's failure to provide this court with a reporter's transcript precludes a review of the trial court's comments at the hearing for an abuse of discretion. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132.)

DISPOSITION

The judgment is affirmed. Soka shall recover costs incurred on appeal.WE CONCUR:O'LEARY, ACTING P. J.FYBEL, J.

Infinitepla
Infinitepla

CHRISTOFFERSEN v. SOKA UNIVERSITY OF AMERICAGAYE CHRISTOFFERSEN, Plaintiff and Appellant,v.SOKA UNIVERSITY OF AMERICA, Defendant and Respondent.

No. G042935.

Court of Appeals of California, Fourth District, Division Three.

Filed April 15, 2011.Glicker & Associates, Brian Glicker, and Maryam Atighechi; Gaye Christoffersen, in pro. per., for Plaintiff and Appellant.Musick, Peeler & Garrett, Steven D. Weinstein, David M. Lester, and Adam L. Johnson for Defendant and Respondent.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

OPINION

IKOLA, J.Plaintiff Gaye Christoffersen appeals a judgment entered in favor of defendant Soka University of America (Soka) following a successful summary judgment motion.1 Christoffersen does not contend summary judgment was inappropriate based on the evidence presented to the court in the parties' respective submissions; instead, she argues the court erred by declining to continue the summary judgment hearing to allow Christoffersen additional time for discovery pursuant to Code of Civil Procedure section 437c, subdivision (h).2 We affirm. Christoffersen failed to make an adequate showing under section 437c, subdivision (h), and the court did not abuse its discretion by denying the request for a continuance.

FACTS

Christoffersen, a university professor, sued Soka for alleged religious discrimination and age discrimination after Soka denied her application for tenure. Christoffersen alleged she was denied tenure because: (1) she refused to join a Buddhist organization, Soka Gakkai International-USA (Soka Gakkai); and (2) she was 62 years old at the time of her tenure denial.Christoffersen's initial complaint was filed on May 22, 2008, and her first amended complaint was filed September 4, 2008. Soka filed an answer to the first amended complaint on February 4, 2009.

Motion for Summary Judgment

On April 24, 2009, Soka filed a motion for summary judgment, noticing the hearing for September 4, 2009. Soka asserted Christoffersen could not establish a prima facie case of discrimination because Soka had legitimate, nondiscriminatory reasons for its decision to deny tenure to Christoffersen, and because there was no evidence the stated reasons for the decision were pretextual.

Included with Soka's summary judgment papers were declarations by several Soka officials involved in the tenure process. For instance, Provost Tomoko Takahashi declared in relevant part: "Dr. Christoffersen was one of four candidates being considered for tenure in Spring 2008, whose applications I reviewed. Neither religion nor age played any role in my decision regarding tenure for any of the candidates. In fact, at all times during the Spring 2008 tenure review process, I did not know the religion or age of any of the four candidates who were being considered for tenure. The three other candidates were granted tenure."

Also included in the summary judgment papers were declarations executed by the three professors who received tenure in the spring of 2008. Professor Edward Lowe attested: he was granted tenure in the spring of 2008; he was not and is not a member of the religious organization Soka Gakkai; he was 41 years old in the spring of 2008; and he had no knowledge that religion or age played a role in his tenure application. Professor XiaoXing Liu and Professor Hiroshi Matsumoto, both awarded tenure in the spring of 2008 at ages 56 and 50, respectively, also attested to their lack of Soka Gakkai membership and the absence of religion or age as a factor in the tenure application process.

Discovery

Christoffersen never served any written discovery requests (i.e., interrogatories, inspection demands, or requests for admission) during the pendency of the lawsuit.On July 22, 2009, Christoffersen served deposition notices (set for August 5-7) for four Soka-affiliated individuals: Dean of Faculty Edward Feasel, Provost Tomoko Takahashi, Professor Phat Vu, and Professor Gail Thomas. After discussion by the parties as to witness availability, the depositions were scheduled for August 6, August 7, August 12, and August 13. Nevertheless, on August 11, Christoffersen called off the depositions of Professor Thomas and Dean Feasel, claiming the depositions could not proceed without the production of records pertaining to the professors who received tenure in the spring of 2008.

The deposition notices specified certain categories of documents to be produced at the depositions. The Dean Feasel notice included (among 25 separate requests) requests for: "documents which show that `neither religion nor age played any role in my decision regarding tenure for any of the candidates'"; "documents which show that `in fact, at all times during spring 2008 tenure review process, I did not know the religion or age of any of the four candidates who were being considered for tenure'"; and "documents upon which you relied to grant the three other candidates tenure." The notice for Provost Takahashi included similar document requests among the 25 categories requested. The other two deposition notices did not request documents pertaining to the other spring 2008 candidates for tenure.

Ex Parte Application

On August 13, 2009, Christoffersen filed an ex parte application, seeking the following relief: (1) an order compelling Soka to produce certain "tenure packets," which consisted of documents pertaining to the successful tenure applications of professors who were granted tenure at the same time Soka denied tenure to Christoffersen; and (2) an order continuing the summary judgment hearing.

In addition to a memorandum of points and authorities, Christoffersen's attorney, Maryam Atighechi, filed a separate document in support of the ex parte application. Although this document was titled "Declaration of Maryam Atighechi," it was not executed under penalty of perjury.

The document stated as follows: "1. I am an attorney at law . . . . All of the statements made herein are of my own personal knowledge and, if called upon to testify thereto could, and would, do so competently. [¶] 2. [I provided sufficient ex parte notice to counsel for opposing parties.] [¶] 3. The application to continue the Motion for Summary Judgment is made in good faith. At the deposition of Provost Tomoko Takahashi Plaintiff learned that the Provost's decision to grant or deny an applicant's tenure was inconsistent with the [Rank and Tenure Committee's] recommendations. [¶] 4. Plaintiff needs further discovery in order to properly oppose Soka University's Motion for Summary Judgment.""5. The discovery plaintiff is requesting are the documents pertaining to 1) Application for tenure 2) [Rank and Tenure Committee] report and notes 3) [university-wide University Rank and Tenure Committee] report and notes 4) Dean Feasel's reports and notes 5) Provost Tomoko Takahashi's decision 6) IDEA evaluations for the five individuals granted tenure.""6. Soka University provided supporting declarations from two applicants who were granted tenure alleging that neither age nor religion played a role in granting them tenure. [¶] 7. Plaintiff needs to evaluate the tenure packet to determine the basis for granting them tenure. This is especially true since at the Provosts deposition she admitted that the [Rank and Tenure Committee] recommended denial of tenure for certain applicants including Hiroshimi Matsumoto. [¶] 8. A continuance is needed to obtain facts essential to oppose the motion for summary judgment."

The court denied the ex parte application by way of a minute order dated August 14, 2009. Christoffersen represents in her brief that the court "did not provide a reason as to the denial of the ex parte application and, after reproaching counsel for Christoffersen for generating paperwork, instructed that the request for continuance be made in the Opposition to Motion for Summary Judgment." Christoffersen elected to proceed on appeal without a reporter's transcript. Thus, it is impossible for this court to consider what was said by the court at the ex parte hearing.

Opposition to Summary Judgment

One week later, Christoffersen filed her opposition to Soka's summary judgment motion. In her memorandum of points and authorities, Christoffersen repeated the argument she raised in her ex parte application: the court should compel production of tenure packets for those professors who received tenure contemporaneously with Christoffersen's rejection and the court should continue the summary judgment hearing to allow her time to review the tenure packets.

Attorney Maryam Ateghechi filed a declaration (under penalty of perjury) in opposition to Soka's motion for summary judgment. But this declaration made no mention of the need for additional evidence and a continuance. Instead, Ateghechi purported to authenticate various exhibits (e.g., deposition transcript excerpts, documents obtained during the litigation or from public sources) for purposes of opposing the motion for summary judgment on the merits.

Ruling

The court granted Soka's summary judgment motion. The court explained its denial of the request for continuance in a written order as follows: "Plaintiff has failed to submit a declaration detailing what facts she intended to obtain to oppose the motion and why such evidence could not be presented at the present time. In addition, plaintiff has not demonstrated reasonable diligence in discovery. This motion was filed in April." As noted above, Christoffersen elected to proceed without a reporter's transcript; thus, we are unable to consider what might have been said at the summary judgment hearing. The court entered judgment on September 29, 2009.

Christoffersen asserts the court erred in granting summary judgment. Her sole argument is that the court should have continued the summary judgment hearing to allow her time to discover additional facts to oppose the motion.3"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, 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." (§ 437c, subd. (h), italics added.)A court must provide relief to a party opposing summary judgment if a proper showing is made by affidavit. (Yuzon v. Collins (2004) 116 Cal.App.4th 149, 167.) "Continuance of a summary judgment hearing is not mandatory, however, when no affidavit is submitted or when the submitted affidavit fails to make the necessary showing under section 437c, subdivision (h). [Citations.] Thus, in the absence of an affidavit that requires a continuance under section 437c, subdivision (h), we review the trial court's denial of appellant's request for a continuance for abuse of discretion." (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 254 (Cooksey).)"A declaration in support of a request for continuance under section 437c, subdivision (h), 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. [Citations.]' [Citation.] . . . `It is not sufficient under the statute merely to indicate further discovery or investigation is contemplated. The statute makes it a condition that the party moving for a continuance show "facts essential to justify opposition may exist."'" (Cooksey, supra, 123 Cal.App.4th at p. 254.) A lack of diligence in pursuing discovery is a recognized factor supporting the denial of a continuance request. (Id. at p. 257.) "A good faith showing that further discovery is needed to oppose summary judgment requires some justification for why such discovery could not have been completed sooner." (Ibid.)

Here, Christoffersen failed to comply with the most basic aspect of the requirements of section 437c, subdivision (h) — submission of an affidavit pertaining to the need for a continuance. (See Mahoney v. Southland Mental Health Associates Medical Group (1990) 223 Cal.App.3d 167, 170.) Atighechi's "declaration" in support of the ex parte application was not filed under penalty of perjury and therefore cannot be considered an "affidavit" at all. "An affidavit is a written declaration under oath . . . ." (§ 2003.) An affidavit (or declaration) executed in California should include a representation "in substantially the following form: [¶] . . . `I certify (or declare) under penalty of perjury that the foregoing is true and correct' . . . ." (§ 2015.5, subd. (a).)

Atighechi's declaration in opposition to the summary judgment motion had no bearing on the issue of a continuance. Material in a memorandum of points and authorities or argument raised orally is insufficient to meet the requirements of section 437c, subdivision (h). (Ambrose v. Michelin North America, Inc. (2005) 134 Cal.App.4th 1350, 1353-1354; American Continental Ins. Co. v. C & Z Timber Co. (1987) 195 Cal.App.3d 1271, 1280.)

Moreover, even if we were to credit Ateghechi's ex parte "declaration" as an "affidavit," Christoffersen still fell short of the requirements under section 437c, subdivision (h). Ateghechi expressed a desire to obtain specific categories of documents in the "tenure packets" of several professors who received tenure at the time Christoffersen was denied tenure. But Ateghechi did not explain how obtaining such documents would provide her with "facts essential to justify opposition" as required by section 437c, subdivision (h). The tenor of the request is that exploratory discovery needed to occur, rather than Christoffersen needed more time to obtain specific facts to oppose the summary judgment motion.

Furthermore, Christoffersen made no showing of diligence in the discovery process. Her ex parte application (filed one week before her opposition to the motion for summary judgment was due) attempted to compel the production of the "tenure packets." But Christoffersen never made a freestanding request for production of such documents under section 2031.010, and only (arguably) requested such documents in deposition notices served less than a month before her opposition to summary judgment was due. Even assuming the document requests in the deposition notices can be read to include requests for the tenure packets, Christoffersen made no effort to explain why she waited so long to seek these documents.

Given the lack of a sufficient declaration, the court's decision to deny Christoffersen's request for continuance is reviewed for an abuse of discretion. The factors identified by the court in its minute order (failure to prepare proper declaration, lack of diligence) and the rest of the record provided to us suggest the court was within its discretion. Moreover, Christoffersen's failure to provide this court with a reporter's transcript precludes a review of the trial court's comments at the hearing for an abuse of discretion. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132.)

DISPOSITION

The judgment is affirmed. Soka shall recover costs incurred on appeal.WE CONCUR:O'LEARY, ACTING P. J.FYBEL, J.

Edmundlmurray
Edmundlmurray

I am the person who said 'Thugs Division". It was not an statement of such a group existing, ever, but was rather a sarcastic summing up of the Yakuza connection stated earlier in the comments. The youth that are 'security' in the Young Mens Division are the Suiko-kai. I am unsure I know what the name means off hand. I am rather puzzled by the assertion about Aum Shinrikyo having a number of Gakkai members in it. If that is so, why would they have anything to do with trying to kill Predsident Ikeda? And if they were in it, don't you think that they would have made the authorities aware of such a plot to kill him much less being involved in training Aum members to carry the attack out? As I have studied Aum in both my undergrad and graduate courses, its beliefs and combining of Hindu, Buddhist and Christian theology is very much outside of Nichiren Buddhism, as practiced by the SGI. I state again that I came across this article because I have Soka Gakkai and Komieto listed in my Google Search terms. Students and Professors would of course be aware of the article. I am in Ohio and would normally never come across it. I am active in my district and have not heard about it from our members here. It may be because I am in the boonies with only 2 members (including me) in the small town I live in. As to the connection to the Temple and Nichiren Shoshu, President Ikeda. as well as all the members of the SGI were ex-communicated by the Priesthood in 1991-2, twice. So Guest, please read more carefully statements from others before you regurgitate them back in warped form. Please.

Guest
Guest

It seems important to acknowledge that many of the comments here are from students and faculty, not SGI members and although SGI members may have responded it is simply to state their opinions (similar to yourself). -SUA c/o 2012 student

TJ
TJ

http://www.collegedata.com/cs/...

Let's see in the next decades. This university will globally be accepted from great scholars and leaders from around the world likes the founder has had those honors.

TJ
TJ

CHRISTOFFERSEN v. SOKA UNIVERSITY OF AMERICAGAYE CHRISTOFFERSEN, Plaintiff and Appellant,v.SOKA UNIVERSITY OF AMERICA, Defendant and Respondent.

No. G042935.

Court of Appeals of California, Fourth District, Division Three.

Filed April 15, 2011.Glicker & Associates, Brian Glicker, and Maryam Atighechi; Gaye Christoffersen, in pro. per., for Plaintiff and Appellant.Musick, Peeler & Garrett, Steven D. Weinstein, David M. Lester, and Adam L. Johnson for Defendant and Respondent.

Ruling

The court granted Soka's summary judgment motion. The court explained its denial of the request for continuance in a written order as follows: "Plaintiff has failed to submit a declaration detailing what facts she intended to obtain to oppose the motion and why such evidence could not be presented at the present time. In addition, plaintiff has not demonstrated reasonable diligence in discovery. This motion was filed in April." As noted above, Christoffersen elected to proceed without a reporter's transcript; thus, we are unable to consider what might have been said at the summary judgment hearing. The court entered judgment on September 29, 2009.

Christoffersen asserts the court erred in granting summary judgment. Her sole argument is that the court should have continued the summary judgment hearing to allow her time to discover additional facts to oppose the motion.3"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, 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." (§ 437c, subd. (h), italics added.)

........

Furthermore, Christoffersen made no showing of diligence in the discovery process. Her ex parte application (filed one week before her opposition to the motion for summary judgment was due) attempted to compel the production of the "tenure packets." But Christoffersen never made a freestanding request for production of such documents under section 2031.010, and only (arguably) requested such documents in deposition notices served less than a month before her opposition to summary judgment was due. Even assuming the document requests in the deposition notices can be read to include requests for the tenure packets, Christoffersen made no effort to explain why she waited so long to seek these documents.

Given the lack of a sufficient declaration, the court's decision to deny Christoffersen's request for continuance is reviewed for an abuse of discretion. The factors identified by the court in its minute order (failure to prepare proper declaration, lack of diligence) and the rest of the record provided to us suggest the court was within its discretion. Moreover, Christoffersen's failure to provide this court with a reporter's transcript precludes a review of the trial court's comments at the hearing for an abuse of discretion. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132.)

DISPOSITION

The judgment is affirmed. Soka shall recover costs incurred on appeal.WE CONCUR:O'LEARY, ACTING P. J.FYBEL, J.

TJ
TJ

CHRISTOFFERSEN v. SOKA UNIVERSITY OF AMERICAGAYE CHRISTOFFERSEN, Plaintiff and Appellant,v.SOKA UNIVERSITY OF AMERICA, Defendant and Respondent.

No. G042935.

Court of Appeals of California, Fourth District, Division Three.

Filed April 15, 2011.Glicker & Associates, Brian Glicker, and Maryam Atighechi; Gaye Christoffersen, in pro. per., for Plaintiff and Appellant.Musick, Peeler & Garrett, Steven D. Weinstein, David M. Lester, and Adam L. Johnson for Defendant and Respondent.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

OPINION

IKOLA, J.Plaintiff Gaye Christoffersen appeals a judgment entered in favor of defendant Soka University of America (Soka) following a successful summary judgment motion.1 Christoffersen does not contend summary judgment was inappropriate based on the evidence presented to the court in the parties' respective submissions; instead, she argues the court erred by declining to continue the summary judgment hearing to allow Christoffersen additional time for discovery pursuant to Code of Civil Procedure section 437c, subdivision (h).2 We affirm. Christoffersen failed to make an adequate showing under section 437c, subdivision (h), and the court did not abuse its discretion by denying the request for a continuance.

FACTS

Christoffersen, a university professor, sued Soka for alleged religious discrimination and age discrimination after Soka denied her application for tenure. Christoffersen alleged she was denied tenure because: (1) she refused to join a Buddhist organization, Soka Gakkai International-USA (Soka Gakkai); and (2) she was 62 years old at the time of her tenure denial.Christoffersen's initial complaint was filed on May 22, 2008, and her first amended complaint was filed September 4, 2008. Soka filed an answer to the first amended complaint on February 4, 2009.

Motion for Summary Judgment

On April 24, 2009, Soka filed a motion for summary judgment, noticing the hearing for September 4, 2009. Soka asserted Christoffersen could not establish a prima facie case of discrimination because Soka had legitimate, nondiscriminatory reasons for its decision to deny tenure to Christoffersen, and because there was no evidence the stated reasons for the decision were pretextual.

Included with Soka's summary judgment papers were declarations by several Soka officials involved in the tenure process. For instance, Provost Tomoko Takahashi declared in relevant part: "Dr. Christoffersen was one of four candidates being considered for tenure in Spring 2008, whose applications I reviewed. Neither religion nor age played any role in my decision regarding tenure for any of the candidates. In fact, at all times during the Spring 2008 tenure review process, I did not know the religion or age of any of the four candidates who were being considered for tenure. The three other candidates were granted tenure."

Also included in the summary judgment papers were declarations executed by the three professors who received tenure in the spring of 2008. Professor Edward Lowe attested: he was granted tenure in the spring of 2008; he was not and is not a member of the religious organization Soka Gakkai; he was 41 years old in the spring of 2008; and he had no knowledge that religion or age played a role in his tenure application. Professor XiaoXing Liu and Professor Hiroshi Matsumoto, both awarded tenure in the spring of 2008 at ages 56 and 50, respectively, also attested to their lack of Soka Gakkai membership and the absence of religion or age as a factor in the tenure application process.

Discovery

Christoffersen never served any written discovery requests (i.e., interrogatories, inspection demands, or requests for admission) during the pendency of the lawsuit.On July 22, 2009, Christoffersen served deposition notices (set for August 5-7) for four Soka-affiliated individuals: Dean of Faculty Edward Feasel, Provost Tomoko Takahashi, Professor Phat Vu, and Professor Gail Thomas. After discussion by the parties as to witness availability, the depositions were scheduled for August 6, August 7, August 12, and August 13. Nevertheless, on August 11, Christoffersen called off the depositions of Professor Thomas and Dean Feasel, claiming the depositions could not proceed without the production of records pertaining to the professors who received tenure in the spring of 2008.

The deposition notices specified certain categories of documents to be produced at the depositions. The Dean Feasel notice included (among 25 separate requests) requests for: "documents which show that `neither religion nor age played any role in my decision regarding tenure for any of the candidates'"; "documents which show that `in fact, at all times during spring 2008 tenure review process, I did not know the religion or age of any of the four candidates who were being considered for tenure'"; and "documents upon which you relied to grant the three other candidates tenure." The notice for Provost Takahashi included similar document requests among the 25 categories requested. The other two deposition notices did not request documents pertaining to the other spring 2008 candidates for tenure.

Ex Parte Application

On August 13, 2009, Christoffersen filed an ex parte application, seeking the following relief: (1) an order compelling Soka to produce certain "tenure packets," which consisted of documents pertaining to the successful tenure applications of professors who were granted tenure at the same time Soka denied tenure to Christoffersen; and (2) an order continuing the summary judgment hearing.

In addition to a memorandum of points and authorities, Christoffersen's attorney, Maryam Atighechi, filed a separate document in support of the ex parte application. Although this document was titled "Declaration of Maryam Atighechi," it was not executed under penalty of perjury.

The document stated as follows: "1. I am an attorney at law . . . . All of the statements made herein are of my own personal knowledge and, if called upon to testify thereto could, and would, do so competently. [¶] 2. [I provided sufficient ex parte notice to counsel for opposing parties.] [¶] 3. The application to continue the Motion for Summary Judgment is made in good faith. At the deposition of Provost Tomoko Takahashi Plaintiff learned that the Provost's decision to grant or deny an applicant's tenure was inconsistent with the [Rank and Tenure Committee's] recommendations. [¶] 4. Plaintiff needs further discovery in order to properly oppose Soka University's Motion for Summary Judgment.""5. The discovery plaintiff is requesting are the documents pertaining to 1) Application for tenure 2) [Rank and Tenure Committee] report and notes 3) [university-wide University Rank and Tenure Committee] report and notes 4) Dean Feasel's reports and notes 5) Provost Tomoko Takahashi's decision 6) IDEA evaluations for the five individuals granted tenure.""6. Soka University provided supporting declarations from two applicants who were granted tenure alleging that neither age nor religion played a role in granting them tenure. [¶] 7. Plaintiff needs to evaluate the tenure packet to determine the basis for granting them tenure. This is especially true since at the Provosts deposition she admitted that the [Rank and Tenure Committee] recommended denial of tenure for certain applicants including Hiroshimi Matsumoto. [¶] 8. A continuance is needed to obtain facts essential to oppose the motion for summary judgment."

The court denied the ex parte application by way of a minute order dated August 14, 2009. Christoffersen represents in her brief that the court "did not provide a reason as to the denial of the ex parte application and, after reproaching counsel for Christoffersen for generating paperwork, instructed that the request for continuance be made in the Opposition to Motion for Summary Judgment." Christoffersen elected to proceed on appeal without a reporter's transcript. Thus, it is impossible for this court to consider what was said by the court at the ex parte hearing.

Opposition to Summary Judgment

One week later, Christoffersen filed her opposition to Soka's summary judgment motion. In her memorandum of points and authorities, Christoffersen repeated the argument she raised in her ex parte application: the court should compel production of tenure packets for those professors who received tenure contemporaneously with Christoffersen's rejection and the court should continue the summary judgment hearing to allow her time to review the tenure packets.

Attorney Maryam Ateghechi filed a declaration (under penalty of perjury) in opposition to Soka's motion for summary judgment. But this declaration made no mention of the need for additional evidence and a continuance. Instead, Ateghechi purported to authenticate various exhibits (e.g., deposition transcript excerpts, documents obtained during the litigation or from public sources) for purposes of opposing the motion for summary judgment on the merits.

Ruling

The court granted Soka's summary judgment motion. The court explained its denial of the request for continuance in a written order as follows: "Plaintiff has failed to submit a declaration detailing what facts she intended to obtain to oppose the motion and why such evidence could not be presented at the present time. In addition, plaintiff has not demonstrated reasonable diligence in discovery. This motion was filed in April." As noted above, Christoffersen elected to proceed without a reporter's transcript; thus, we are unable to consider what might have been said at the summary judgment hearing. The court entered judgment on September 29, 2009.

Christoffersen asserts the court erred in granting summary judgment. Her sole argument is that the court should have continued the summary judgment hearing to allow her time to discover additional facts to oppose the motion.3"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, 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." (§ 437c, subd. (h), italics added.)A court must provide relief to a party opposing summary judgment if a proper showing is made by affidavit. (Yuzon v. Collins (2004) 116 Cal.App.4th 149, 167.) "Continuance of a summary judgment hearing is not mandatory, however, when no affidavit is submitted or when the submitted affidavit fails to make the necessary showing under section 437c, subdivision (h). [Citations.] Thus, in the absence of an affidavit that requires a continuance under section 437c, subdivision (h), we review the trial court's denial of appellant's request for a continuance for abuse of discretion." (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 254 (Cooksey).)"A declaration in support of a request for continuance under section 437c, subdivision (h), 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. [Citations.]' [Citation.] . . . `It is not sufficient under the statute merely to indicate further discovery or investigation is contemplated. The statute makes it a condition that the party moving for a continuance show "facts essential to justify opposition may exist."'" (Cooksey, supra, 123 Cal.App.4th at p. 254.) A lack of diligence in pursuing discovery is a recognized factor supporting the denial of a continuance request. (Id. at p. 257.) "A good faith showing that further discovery is needed to oppose summary judgment requires some justification for why such discovery could not have been completed sooner." (Ibid.)

Here, Christoffersen failed to comply with the most basic aspect of the requirements of section 437c, subdivision (h) — submission of an affidavit pertaining to the need for a continuance. (See Mahoney v. Southland Mental Health Associates Medical Group (1990) 223 Cal.App.3d 167, 170.) Atighechi's "declaration" in support of the ex parte application was not filed under penalty of perjury and therefore cannot be considered an "affidavit" at all. "An affidavit is a written declaration under oath . . . ." (§ 2003.) An affidavit (or declaration) executed in California should include a representation "in substantially the following form: [¶] . . . `I certify (or declare) under penalty of perjury that the foregoing is true and correct' . . . ." (§ 2015.5, subd. (a).)

Atighechi's declaration in opposition to the summary judgment motion had no bearing on the issue of a continuance. Material in a memorandum of points and authorities or argument raised orally is insufficient to meet the requirements of section 437c, subdivision (h). (Ambrose v. Michelin North America, Inc. (2005) 134 Cal.App.4th 1350, 1353-1354; American Continental Ins. Co. v. C & Z Timber Co. (1987) 195 Cal.App.3d 1271, 1280.)

Moreover, even if we were to credit Ateghechi's ex parte "declaration" as an "affidavit," Christoffersen still fell short of the requirements under section 437c, subdivision (h). Ateghechi expressed a desire to obtain specific categories of documents in the "tenure packets" of several professors who received tenure at the time Christoffersen was denied tenure. But Ateghechi did not explain how obtaining such documents would provide her with "facts essential to justify opposition" as required by section 437c, subdivision (h). The tenor of the request is that exploratory discovery needed to occur, rather than Christoffersen needed more time to obtain specific facts to oppose the summary judgment motion.

Furthermore, Christoffersen made no showing of diligence in the discovery process. Her ex parte application (filed one week before her opposition to the motion for summary judgment was due) attempted to compel the production of the "tenure packets." But Christoffersen never made a freestanding request for production of such documents under section 2031.010, and only (arguably) requested such documents in deposition notices served less than a month before her opposition to summary judgment was due. Even assuming the document requests in the deposition notices can be read to include requests for the tenure packets, Christoffersen made no effort to explain why she waited so long to seek these documents.

Given the lack of a sufficient declaration, the court's decision to deny Christoffersen's request for continuance is reviewed for an abuse of discretion. The factors identified by the court in its minute order (failure to prepare proper declaration, lack of diligence) and the rest of the record provided to us suggest the court was within its discretion. Moreover, Christoffersen's failure to provide this court with a reporter's transcript precludes a review of the trial court's comments at the hearing for an abuse of discretion. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132.)

DISPOSITION

The judgment is affirmed. Soka shall recover costs incurred on appeal.WE CONCUR:O'LEARY, ACTING P. J.FYBEL, J.

Guest
Guest

American Soka Gakkai students are encouraged after graduation from Soka University to take on leadership roles in the US government at every level and in every branch. As a religious organization this would not be a problem but as a political organization representing Soka Gakkai based in Japan, they should probably be registered as agents representing the interests of a foreign entity. Criticism of Soka Gakkai centers on its use of religion as a means to political power which has for decades been its dark side. This includes sinister activities such as hiring yakuza and training Aum Shinrikyo security forces. The dark side has been well-known in Japan for decades (see Time magazine, November 20, 1995, "The Power of Soka Gakkai: Growing Revelations About the Complicated and Sinister Nexus of Politics and Religion."Soka Gakkai as a political organization has been banned in several countries usually due to activities that bring out its dark side. France banned Soka Gakkai as a cult. The Taiwan government banned Soka Gakkai in the 1960s because many of its members were former members of a right-wing secret society that had engaged in espionage before and during WWII throughout Asia and even in the US. The South Korean government also banned Soka Gakkai for the same reason. But Taiwan and South Korea now have Soka Gakkai groups because Taiwan and South Korea were successful in getting Soka Gakkai to reform; they weren't fooled by its facade.

Guest
Guest

Soka University's image of serenity is only a facade. The university is a site of intense activity such as "shakubuku" carried out on unsuspecting teenagers when they first arrive there driven by the need to expand membership in Soka Gakkai in Southern California and to increase the number of groups that are forming in the area. Soka University has become the mothership for these groups. Constant aggressive behavior becomes the norm which is odd for a Buddhist organization. It is more the behavior of a political organization with ambitions to penetrate American political circles. American Soka Gakkai students are encouraged after graduation from Soka University to take on leadership roles in the US government at every level and in every branch. As a religious organization this would not be a problem but as a political organization representing Soka Gakkai based in Japan, they should probably be registered as agents representing the interests of a foreign entity. According to the cult awareness website, "In fact, Soka's greatest vulnerability is its dark side: it is suspected of using religion as a means of gaining political power." The dark side includes sinister activities such as hiring yakuza and training Aum Shinrikyo security forces. Soka Gakkai as a political organization has been banned in several countries usually due to activities that bring out its dark side. The dark side has been well-known in Japan for decades (see Time magazine, November 20, 1995, "The Power of Soka Gakkai: Growing Revelations About the Complicated and Sinister Nexus of Politics and Religion."

France banned Soka Gakkai as a cult. The Taiwan government banned Soka Gakkai in the 1960s because many of its members were former members of a right-wing secret society that had engaged in espionage throughout Asia and even in the US. The South Korean government also banned Soka Gakkai for the same reason. But Taiwan and South Korea now have Soka Gakkai groups because Taiwan and South Korea were successful in getting Soka Gakkai to reform; they weren't fooled by the facade.

In the US, Soka Gakkai has a history of trying to infiltrate the government. According to Newsweek, Soka Gakkai tried to tap into FBI records and was subsequently investigated by the US Congress. (Michael Isikoff, "Internal Affairs: A case raises serious issues about the safeguarding of NCIC records," Newsweek, July 26, 2000.) There is an American movement to reform Soka Gakkai that wants it to give up its dark side and sinister activities. To do that would require greater awareness of the nature of Soka Gakkai than exists in the US today, and it is not certain Orange County is up to the task.

Guest
Guest

The situation is not so different today. Soka Gakkai's use of coercive "shokobuku" today reminds everyone of the Nichirenists participation in "forced Japanization" in Taiwan under the Japanese Imperial Army. Today Soka Gakkai uses its 'thugs division' as the enforcer rather than the Japanese Imperial Army. What is criminal is the use of students at Soka University to coerce victims. It has nothing to do with genuine Buddhism which is not coercive.

Guest
Guest

Your comment is ahistorical. It is preferable that you read history books but at least look at wikipedia. The history of Japanese Buddhism in Taiwan is not a happy one, and it does not begin 10 years ago. During the Japanese occupation (1895–1945), Japanese Buddhism, including Nichiren Shu, was introduced as part of the overall policy of cultural assimilation by the colonial government. It was believed that used properly, religion could accelerate the assimilation of the Taiwanese into Japanese society.Although many Buddhist communities affiliated themselves with Japanese sects for protection, they largely retained Chinese Buddhist practices. Many Taiwanese temples experienced pressure to affiliate with Japanese lineages. After Japan invaded China, the Japanese colonial authorities promoted a Japanization cultural policy to prevent Taiwanese sympathy for Chinese on the mainland. This accelerated Japanese influence over Taiwanese Buddhism and turned the religion into a tool of state control used in its military mobilization program. Ideological indoctrination through Buddhist training posts established throughout Taiwan meant that, until Japan’s retreat from Taiwan in 1945, indigenous Buddhism completely lost its autonomy. [source: The Buddhist Channel] What this means is: Nichirenists collaborated with the Japanese military government on Taiwan. After WWII, under the KMT, government policy was the active destruction of any trace of Japanese Buddhism.The situation is different today but I suspect it wouldn't take much to bring up the old resentments towards forced Japanization.if these wikipedia blurbs inspire you to investigate history more thoroughly, then that would be a positive outcome putting you on the path to enlightenment.

Guest
Guest

Actually, the SGI in Taiwan is applauded by the Taiwanese government and has been honored as the most contributing social group in Taiwan, several years in a row in the past decade.

The Taiwanese government banned many religious groups during that period, which was also under martial law and oppressive to the Taiwanese people. When martial law was lifted, the Taiwanese government underwent a massive change, allowing for more than one political party and the freedom of speech and religion.

Don't bring in Taiwan because you know nothing about the government of Taiwan, or how SGI functions in Taiwan,

Guest
Guest

before and during WWII, it was the Nichiren shoshu who were tainted by collaboration with a right-wing paramilitary secret society engaged in espionage in Asia and the US. Tanaka Chigaku created "Nichirenism" which justified the expansion of the Japanese empire. Both organizations collaborated with the Japanese Imperial Army in Taiwan and Korea in maintaining its colonial domination. Nichiren ideology regarding the importance of propagating Japanese civilizational values in order to maintain order, “hakkō ichiu”, was the ideological foundation for the Greater East Asia Co-Prosperity Sphere and it is the basis of Soka Gakkai's goal of creating world order through aggressive proselytizing and covert operations. Post-WWII, the Taiwanese and South Korean governments identified many of these secret society members among the Soka Gakkai membership. Taiwanese and Koreans recognized them as operatives from the Japanese colonial era. Post-WWII, the US occupation in Japan banned right-wing paramilitary secret societies engaged in espionage. Soka Gakkai, previously an educational society, became home to many of these groups that could not legally operate openly. In the 1960s and 1970s, they changed Soka Gakkai into a political organization with a Buddhist peace movement facade which could then infiltrate 192 countries. It has always been the overt and covert political operations of Soka Gakkai that indicate its dark side. The Taiwanese and South Korean governments banned Soka Gakkai in the 1960s and 1970s for its political operations. Although Soka Gakkai demonizes the Nichiren shoshu, it has inherited much of its ideology and aggressiveness.

Edmundlmurray
Edmundlmurray

Guest, are you kidding me? My fellow, only other member in Tiffin Ohio, became a member of the SGI in France, in the 1970's. Korea has the largest membership outside of Japan with over 500,000 members. It was the Temple that got thrown out of Korea and other country's for falsely trying to built temples and saying that they weren't. The Taiwanese SGI has been awarded several times with national merit for their activities. The banning was due to military governments and the horrible treatment during Japanese Imperial occupation. The founders of the SGI Makaguchi and Toda went to prison as thought criminals during the war for being vocally against the invasion and treatment against fellow asians, by the Japanese Army. If they had not done so, the teachings of the Daishonin would never have spread to asian countries. Ever. Let me also point out there are dozens of Christian political parties around the world.

 
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