Letters From OC Weekly Readers

A TINY FRACTION OF OUR SOKA UNIVERSITY LETTERS
As a current third-year student, I was appalled upon reading this article and the fallacious accusations it contained [Michelle Woo's "The School On a Hill," March 11]. Upon arriving at Soka University of America, I had no prior knowledge regarding Soka Gakkai International (SGI) practices or beliefs. Three years later, I have only the minimal understanding of the organization.

In the time I have been a student here, I have never felt pressured to attend any type of SGI-related activity. Although it is common knowledge that a percentage of Soka personnel are practicing members of the SGI, not once has it been brought up in discussion, whether in the classroom or otherwise. It is true that photographs of and by Daisaku Ikeda and some of his writings can be found on display in various parts of the university; the fact of the matter is he is the founder of this institution, and just like any other university, we hold a sense of respect and pride in him. If it were not for his dedication and desire to create an institution to foster wholesome human beings, this university would not be in existence today.

Like with any other religion, there are individuals who feel passionately about it and do try to share their ideas and beliefs with others. However, the environment at Soka has always been one of familiarity and comfort, and simply declining offers to attend SGI events or discussions will more than suffice. I practice Christianity and feel as though I can freely discuss my beliefs with other students without being judged in any way.

Reading this article saddened me because I take so much pride in being a student of this institution. The knowledge I have gained here through the years and the growth I have undergone have made me into someone that I love and admire. Seeing the way in which the place I love so much was portrayed due to ignorance and lack of research offends me deeply. I only hope actions will be taken to repair the potential damage this article may cause.

Veronica Ortega, via e-mail

 

At my sworn deposition in the Gaye Christoffersen case, I was confronted with the charge of wanting to get rid of non-Gakkai faculty so that only Gakkai faculty would remain. It seems Dr. Christoffersen was convinced I was a Gakkai member, a fact that, if true, would still give her fabrication only a problematic degree of plausibility. After denying the charge and confirming I was not a Gakkai member, Christoffersen's lawyer suspended the deposition, knowing it was pointless to continue with their planned series of questions. After the break, their new series of questions was about whether I was discriminated against because I was not a Gakkai member. I have never been discriminated against for not being a Gakkai member, but I have instead thrived personally and professionally at a place that is and with people who are dear to me.

The Christoffersen case was dismissed so quickly for lack of merit that I did not need to take the next legal step, which was to sign my deposition transcript. In November 2010, Judge [Donald] Miles of the State Bar Court agreed with the State Bar that "disbarment of Respondent [Christoffersen's lawyer] is called for . . . and . . . is necessary to protect both the public and the profession." The disbarment recommendation was mainly for "moral turpitude, misappropriation" and "moral turpitude, misrepresentation" in cases unrelated to the article. The same lawyer, though, was involved in other cases mentioned in the article.

It is standard that campus administrators are restricted from commenting on personnel matters; however, this is not true of others on campus, and those others are beginning to also fill in missing pieces (concerning Orin Kirshner, for example) with their online postings and wishing they had been contacted, too.

Phat Vu, Associate Professor of Physics, Soka University of America, via e-mail

 

I would agree with some arguments in this article, if they were properly discussed. Unfortunately, much of this seems to be a work of literature, rather than anything supported by evidence. Some of this article did demonstrate an impartial tone, with the discussions of those who say religious diversity is accepted at the school. I can appreciate that because I am sure many other writers who criticize Soka University wouldn't consider mentioning this part.

The fact is, this article exaggerates truth. There are many professors who are in SGI; that is the truth. Gaye Christoffersen's statements could be truths—it could be true the non-SGI professors are there to give the school credibility. It's funny how this works out because I would agree with one of the commenters that Christoffersen was not a great professor. But she definitely had what it takes—she is probably what you would expect out of a professor in the real world. Experts do not always make good teachers. Maybe these credible professors just cannot fit into the values of this school because its values are much more humanistic than those of other schools. Another truth: Most likely, this population of SGI professors does make non-SGI professors uncomfortable. It would be more surprising if they weren't uncomfortable because of how SGI members portray themselves. Their faith is a strong, prideful faith.

I have attended a class in which a professor used the words of Ikeda to give us ideas. I am not saying there is anything wrong with this, but it is confusing when no other school would use his teachings in a lesson. The fact is people honor Ikeda at this school and are expected to make efforts to show appreciation for him. They are not required to, but it is definitely an expectation that is created by the student population. This most likely will change as more and more non-SGI students are accepted to the school. As for the SGI professors, I can only hope they have not put their fellow professors through the same trouble.

Student, via ocweekly.com

 

As an atheist student at Soka University of America who has had no affiliation with SGI, let me just say that I felt more religious discrimination in one day of public high school than I have ever felt here. I would go so far as to say that I have not felt any and that this article is only trying to draw readership for its advertisements by sensationalizing private legal issues. I guess if that were the goal, mission accomplished.

Nate Maynard, via ocweekly.com

 

This is purely shock journalism. Ms. Woo will regard her work as tantalizing. Advocates of the SGI will consider this article petty. The side of the victim in this article—which is directly slanted in support of—is extremely happy, as if she has won a great victory. Seek your truth.

Silverbackninja, via ocweekly.com

 

Great article, horrible cover art.

Drewrx, via ocweekly.com

 

Whatever issues are flaring at Soka University, your choice of cover is pretty damn offensive. The fact that the writer is Asian doesn't dampen its childishly racist overtones. Maybe next you can run an article about the Japanese tsunami with a cover depicting scores of "Buddhaheads" being swept away by the flood.

Lostinanart, via ocweekly.com

 

I'm appalled at reading this article and the ridiculous cartoon! As a reporter, please do thorough research. It is creating a false image of an incredible school and its community.

Anonymous, via ocweekly.com

 

Editor Ted B. Kissell responds: On the topic of the cover art, I could sit here and try to explain what we were getting at, metaphorically, with the cartoony illustration of the looming Buddha-like figure and the smaller people in his hands, but you know what they say about having to explain a joke. And I don't think anyone is upset about the cover because they didn't "get" it.

In recent days, I've talked to several intelligent people of good conscience who didn't see the image as ethnically insensitive. I've talked to just as many intelligent people of good conscience—and with no ties to SGI or Soka—who told me the image was goofy, fucked-up or both.

I'm writing this note to let you know that if you think the illustration crosses the line from irreverent and ironic into a flat-out racist caricature of an Asian person, then you should direct all of your ire against the person who's really responsible for it: me.

As the editor of this paper, I wouldn't have let it go out the door if I'd thought it crossed that line. Around here, we like to offend people on purpose, not by accident—and always in the service of some larger satirical goal. The cover should offer a powerful visual statement that both distills and amplifies the essence of the story, not become a distraction from it.

If you think the cover showed crap judgment, then the crap judgment in question was mine and no one else's. Please let me know your thoughts directly at tkissell@ocweekly.com.

 

CLARIFICATION
In Michelle Woo's March 11 cover story, "The School On a Hill," a court document was quoted that referred to Hare Krishna as "an alternative Buddhist sect." The Hare Krishna movement is, in fact, a Hindu group.

 

CORRECTION
In Alexis Hodoyan-Gastelum's March 4 Locals Only story, "Think Ink," Kat Von D was mistakenly identified as being involved with the MusInk festival. Von D hosted the event in 2008. The Weekly regrets the error.

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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.

Guest
Guest

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Please do your research thoroughly before bashing a school that you obviously know nothing about. Nobody at Soka should be concerned with this trainwreck of an article. Only the most ignorant of readers are able to get passed so many fallacies and untruths in one read.

beizhua
beizhua

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apoole33

Ah, yes, Guest --but that would be JOURNALISM...and they apparently don't do that at the OC...too much work you know, in actual research and fact-finding.

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.

 
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