Chapter 21
Summary Judgment

Table of Contents

I. OVERVIEW

21:1. Nature and purpose; summary adjudication distinguished

21:2. Materiality

21:3. Role of pleadings

21:4. Motion for judgment on the pleadings compared

21:5. Use of summary judgment in First Amendment cases

21:6. Use of summary judgment in unlawful detainer and forcible entry cases

21:7. Unavailability of summary judgment in particular actions

21:8. Special rule where summary judgment granted as to one of several defendants in action involving injury to person or property

II. SUMMARY ADJUDICATION

21:9. Overview

21:10. Procedure for summary adjudication

21:11. Motion for summary judgment following denial of summary adjudication

III. MOVING FOR SUMMARY JUDGMENT

A. MOVING PAPERS

21:12. Overview

21:13. Notice of motion

21:14. Memorandum of points and authorities

B. SUPPORTING EVIDENCE

1. OVERVIEW

21:15. Supporting papers

21:16. Format of evidence in support of or in opposition to motion for summary judgment

2. AFFIDAVITS AND DECLARATIONS

21:17. Overview

21:18. Admissible evidence; personal knowledge and competency requirements

21:19. Evidentiary facts requirement

21:20. Documentary evidence

3. ADMISSIONS; DEPOSITIONS; RELIANCE ON PLEADINGS

21:21. Admissions

21:22. Depositions

21:23. Reliance on pleadings

4. JUDICIAL NOTICE

21:24. Overview

21:25. Requesting judicial notice; judicial notice of court file

5. SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS

21:26. Overview

21:27. Format of separate statement of undisputed material facts

C. PROCEDURE

21:28. Time for making motion

21:29. Service of notice of motion

21:30. Reply to opposition

IV. OPPOSING MOTION FOR SUMMARY JUDGMENT

A. OVERVIEW

21:31. Opposition papers

21:32. Separate statement in opposition to motion for summary judgment

B. PROCEDURE

21:33. Time for filing opposition

21:34. Continuance

V. HEARING AND RULING BY COURT

A. HEARING

21:35. Time for hearing

B. OBJECTIONS TO EVIDENCE

21:36. Overview

21:37. Form of objections to evidence

C. BURDEN OF PROOF

21:38. Burden of proof of moving party

21:39. Burden of proof of opposing party

21:40. Construction of affidavits

D. STANDARDS FOR RULING BY COURT

21:41. Statutory provisions

E. ORDERS

21:42. Order granting motion

21:43. Order denying motion

21:44. Sanctions for affidavits presented in bad faith

F. CHALLENGING RULING IN TRIAL COURT

21:45. When motion is granted

21:46. When motion is denied

VI. APPELLATE REVIEW OF COURT‘S RULING

A. APPEAL OF SUMMARY JUDGMENT

21:47. Appealability

21:48. Action involving multiple parties

21:49. Scope of review on appeal

B. REVIEW BY WRIT

21:50. Overview

21:51. Time limits for filing petition for writ

VII. PROCEDURAL CHECKLISTS

21:52. Matters to be considered by moving party

21:53. Matters to be considered by opposing party

VIII. FORMS

21:54. Notice of motion for summary judgment [CCP §437c(a)]

21:55. Notice of motion for summary adjudication [CCP §437c(a) and (f)]

21:56. Separate statement of undisputed material facts in support of motion for summary judgment [CCP §437c(b)]

21:57. Separate statement in opposition to motion for summary judgment [CCP §437c(b)]

21:58. Declaration in support of or in opposition to summary judgment [CCP §437c(b) and (d)]

21:59. Proposed order granting motion for summary judgment [CCP § 437c(g)]

21:60. Proposed order granting motion for summary adjudication [CCP § 437c(g)]

21:61. Proposed order denying motion for summary judgment [CCP § 437c(g)]

21:62. Proposed order denying motion for summary adjudication [CCP § 437c(g)]

21:63. Summary Judgment [CCP §437c]

Bibliography

u u u

Coverage of Chapter

Legal principles governing summary judgment and summary adjudication.

Procedures for moving for or opposing motions for summary judgment and summary adjudication.

Procedures for review of court’s ruling on motions for summary judgment and summary adjudication.

Examples of forms relating to summary judgment and summary adjudication including notice of motion, separate statement of undisputed material facts, declaration in support of or in opposition to motion for summary judgment, orders granting and denying motion, and summary judgment.

Treated Elsewhere

Format of court papers, in general (PROCEDURE: Format of Court Papers Ch 2)

Motions to strike, motions for judgment on the pleadings, motions for nonsuit judgment (PROCEDURE: Responsive Procedures Ch 10)

Affidavits and declarations, in general (PROCEDURE: Affidavits, Declarations, and Verification of Pleadings Ch 11)

Motion practice, in general (PROCEDURE: Motion Practice Ch 14)

Sanctions under CCP §128.5 (PROCEDURE: Sanctions Under CCP §128.5; Vexatious Litigants Chapter 15)

Judgments, in general (PROCEDURE: Judgments Ch 28)

Motion for new trial (PROCEDURE: Attacking the Judgment Ch 29)

This chapter was written in consultation with Victoria J. De Goff, an attorney in the Berkeley, California firm of De Goff & Sherman, with the practice limited to civil appellate advocacy. She received her J.D. degree from the University of California, Boalt Hall School of Law and was admitted to the California Bar in 1972. She is a member of the Advisory Council of the Hastings College of Trial and Appellate Advocacy.

I. OVERVIEW

21:1. Nature and purpose; summary adjudication distinguished

21:2. Materiality

21:3. Role of pleadings

21:4. Motion for judgment on the pleadings compared

21:5. Use of summary judgment in First Amendment cases

21:6. Use of summary judgment in unlawful detainer and forcible entry cases

21:7. Unavailability of summary judgment in particular actions

21:8. Special rule where summary judgment granted as to one of several defendants in action involving injury to person or property

§ 21:1 Nature and purpose; summary adjudication distinguished

 

The purpose of summary judgment is to penetrate evasive language and adept pleading and to ascertain, through supporting and opposing papers, the presence or absence of triable issues of fact. [Molko v Holy Spirit Assn. (1988) 46 Cal 3d 1092, 252 Cal Rptr 122, 762 P2d 46, cert den 490 US 1084,104 L Ed 2d 670 , 109 S Ct 2110; Onciano v Golden Palace Restaurant, Inc. (1990, 2nd Dist) 219 Cal App 3d 385, 268 Cal Rptr 96] A motion for summary judgment must be granted if all the papers submitted in support of the motion show that there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. [CCP §437c(c); for discussion of supporting papers, see §§21:15-21:32] Because summary judgment is a drastic measure that deprives the losing party of a trial on the merits, it should be used with caution so that it does not become a substitute for trial. [Molko v Holy Spirit Assn. (1988) 46 Cal 3d 1092, 252 Cal Rptr 122, 762 P2d 46, cert den 490 US 1084, 104 L Ed 2d 670, 109 S Ct 2110] The procedure governing summary judgment is set forth in CCP § 437c.

In contrast to a motion for summary judgment which, if successful, disposes of the entire action [CEB, Civil Procedure Before Trial 3d, Deciding to Seek Summary Judgment §43:1], a motion for summary adjudication, if successful, disposes of one or more causes of action or affirmative defenses within the action. [See CCP §437c(f); Kimura v Superior Court (1991, 6th Dist) 230 Cal App 3d 1235, 281 Cal Rptr 691 (CCP §437c(f) provides for summary adjudications of causes of action or affirmative defenses); for discussion of summary adjudication, see §§21:9, 21:10]

Ä Practice Note

The procedural prerequisites of summary judgment motions require full and carefully drafted declarations and separate statements of disputedundisputed facts with detailed references to the evidence. Accordingly, motions for summary judgment are very time consuming and therefore costly to the client. Summary judgment is rarely granted, and, when granted, often reversed. As a result, an attorney should not move for summary judgment or summary adjudication unless he or she believes that the motion has a good chance of being successful.

Counsel should also consider possible adverse consequences of an unsuccessful motion. For example, a motion could result in educating the other side about weaknesses in its case, or result in more trial preparation by the other side than otherwise would have been done.

§ 21:1 Nature and purpose; summary adjudication distinguished [Revised] [Supp]

 

--pp. 10, 11. Replace the text of the section with the following:

The purpose of summary judgment is to penetrate evasive language and adept pleading and to ascertain, through supporting and opposing papers, the presence or absence of triable issues of fact. [Molko v Holy Spirit Assn. (1988) 46 Cal 3d 1092, 252 Cal Rptr 122, 762 P2d 46, cert den; Onciano v Golden Palace Restaurant, Inc. (1990, 2nd Dist) 219 Cal App 3d 385, 268 Cal Rptr 96] A motion for summary judgment must be granted if all the papers submitted in support of the motion show that there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. [CCP §437c(c); for discussion of supporting papers, see §§21:15-21:32] Because summary judgment is a drastic measure that deprives the losing party of a trial on the merits, it should be used with caution so that it does not become a substitute for trial. [Molko v Holy Spirit Assn. (1988) 46 Cal 3d 1092, 252 Cal Rptr 122, 762 P2d 46, cert den] The procedure governing summary judgment is set forth in CCP §437c. The denial or granting of summary judgment does not involve an exercise of discretion. [Marriage & Family Center v Superior Court (1991, 4th Dist) 228 Cal App 3d 1647, 279 Cal Rptr 475]

In contrast to a motion for summary judgment which, if successful, disposes of the entire action [CEB, Civil Procedure Before Trial 3d, Deciding to Seek Summary Judgment §43:1], a motion for summary adjudication, if successful, disposes of one or more causes of action within the action, or one or more affirmative defenses, claims for damages, or issues of duty. [See CCP §437c(f)(1); Kimura v Superior Court (1991, 6th Dist) 230 Cal App 3d 1235, 281 Cal Rptr 691 (CCP §437c(f) provides for summary adjudications of causes of action or affirmative defenses); for discussion of summary adjudication, see §§21:9, 21:10]

Ä Practice Note

The procedural prerequisites of summary judgment motions require full and carefully drafted declarations and separate statements of disputedundisputed facts with detailed references to the evidence. Accordingly, motions for summary judgment are very time consuming and therefore costly to the client. Summary judgment is rarely granted, and, when granted, often reversed. As a result, an attorney should not move for summary judgment or summary adjudication unless he or she believes that the motion has a good chance of being successful.

Counsel should also consider possible adverse consequences of an unsuccessful motion. For example, a motion could result in educating the other side about weaknesses in its case, or result in more trial preparation by the other side than otherwise would have been done.

Although the motion may disclose the facts of an opponent‘s case, it should not be used as a discovery tool. As such, it is a cumbersome and expensive substitute for ordinary discovery and may not result in full disclosure.

In deciding when to make the motion, counsel should consider what discovery remains to be completed. Code of Civil Procedure section 437c(f)(2) prevents repeated motions where a previous motion for summary adjudication was denied except where there are new facts or a change of law occurred. [For further discussion, see §21:11] Code of Civil Procedure section 437c(h) requires the court to grant a continuance or deny the motion where the opposition shows there are facts not yet available which are essential to justify the opposition. [For further discussion, see §21:34]

Counsel should make the motion well in advance of the deadline before trial. Most courts will require substantial good cause before allowing the hearing to take place within 30 days of trial. The granting of an opponent’s CCP §437c(h) request for continuance will probably not be considered good cause to hear the motion close to trial.

It is not an abuse of discretion to deny a continuance to discover further evidence where the action has been pending a long time and extensive discovery has been completed. [Fisher v Larsen (1982, 4th Dist) 138 Cal App 3d 627, 188 Cal Rptr 216] However, the exercise of the court‘s discretion in denying the continuance must be based on a clear finding of lack of diligence on the part of the moving party. [Aguimatang v California State Lottery (1991, 3rd Dist) 234 Cal App 3d 769, 286 Cal Rptr 57] Otherwise, an adequate showing of missing "essential" facts will mandate either continuance or denial of the summary judgment motion.

§ 21:2 Materiality

A motion for summary judgment addresses the question whether there are dispositive material facts which are not in dispute. [CCP §437c(c); Pultz v Holgerson (1986, 3rd Dist) 184 Cal App 3d 1110, 229 Cal Rptr 531] Materiality depends on the issues in the case. Materiality is measured by the law applicable to the legal theories put in issue by the complaint. [Anderson v Heart Federal Savings (1989, 3rd Dist) 208 Cal App 3d 202, 256 Cal Rptr 180; see Pultz v Holgerson (1986, 3rd Dist) 184 Cal App 3d 1110, 229 Cal Rptr 531 (what matters are in issue is determined mainly by pleadings, rules of pleading, and substantive law relating to particular kind of case)]

§ 21:3 Role of pleadings

 

The first step in analyzing a motion for summary judgment is to identify the issues framed by the pleadings. It is these allegations to which the motion must respond by establishing a complete defense or by otherwise showing there is no factual basis for relief on any theory reasonably contemplated by the opponent’s pleading. [Andersen v Pacific Bell (1988, 6th Dist) 204 Cal App 3d 277, 251 Cal Rptr 66] Because the pleadings delimit the scope of the issues [Sadlier v Superior Court (1986, 2nd Dist) 184 Cal App 3d 1050, 229 Cal Rptr 374], declarations or affidavits submitted on a motion for summary judgment or summary adjudication cannot raise new issues which have not been pled. [CEB, Civil Procedure Before Trial 3d, Motions for Summary Judgment §44:2; see AARTS Productions, Inc. v Crocker National Bank (1986, 6th Dist) 179 Cal App 3d 1061, 225 Cal Rptr 203 (sufficient motion cannot be successfully resisted by counterdeclarations that create immaterial factual conflicts outside scope of pleadings); Fireman‘s Fund Ins. Co. v Turlock (1985, 5th Dist) 170 Cal App 3d 988, 216 Cal Rptr 796 (where defendant is moving party, papers submitted in support of and in opposition to motion must address issues raised by complaint); Dorado v Knudsen Corp. (1980, 2nd Dist) 103 Cal App 3d 605, 163 Cal Rptr 477 (affidavits in support of motion for summary judgment do not constitute second set of pleadings; their purpose is only to show whether issues apparently made by final pleadings are genuine)] If, however, either party finds that his or her pleading is not adequate, either by way of allegation or denial, the court may and should permit the party to amend. The party, however, must seek leave to amend. In the absence of some request for amendment there is no occasion to inquire about possible issues not raised by the pleadings. [Dorado v Knudsen Corp. (1980, 2nd Dist) 103 Cal App 3d 605, 163 Cal Rptr 477]

§ 21:3 Role of pleadings [Revised] [Supp]

 

--p. 12. Remove the last sentence of the section, keeping the cite to the Dorado case, and add the following at the end of the section:

However, it is not necessary that a claim or defense be fully or properly pleaded to be considered by the court. The pleadings may be read together with the factual showings to identify what is at issue on the motion. [FPI Development, Inc. v Nakashima (1991, 3rd Dist) 231 Cal App 3d 367, 282 Cal Rptr 508]

The court has the inherent power to grant summary judgment on a legal ground not raised by the moving party provided the opposing party is given notice and adequate opportunity to respond to the ground identified by the court. [Juge v County of Sacramento (1993, 3rd Dist) 12 Cal App 4th 59, 15 Cal Rptr 2d 598]

The court retains discretion to deny the motion even where there is a factual basis to grant it, if the moving party has failed to set forth the proper legal basis for summary judgment. [Juge v County of Sacramento (1993, 3rd Dist) 12 Cal App 4th 59, 15 Cal Rptr 2d 598] However, the court may abuse its discretion in granting the motion where a defense is disclosed by the evidence. This is consistent with the presumption favoring the opposing party [see Keene v Wiggins (1977, 4th Dist) 69 Cal App 3d 308, 138 Cal Rptr 3] and suggests a shift in emphasis from the pleadings as framing the issues to an inquiry designed to provide fair notice and adequate hearing.

§ 21:4 Motion for judgment on the pleadings compared

A motion for judgment on the pleadings serves the same function as a general demurrer, namely, challenging the sufficiency of the pleadings. [Board of Regents v Davis (1975) 14 Cal 3d 33, 120 Cal Rptr 407, 533 P2d 1047; Witkin, 6 Cal. Proc. 3d, Proceeding Without Trial, §280] In the case of a complaint, a motion for judgment on the pleadings tests whether, as a matter of law, the complaint states facts sufficient to state a cause of action. [La Jolla Village Homeowners’ Assn. v Superior Court (1989, 4th Dist) 212 Cal App 3d 1131, 261 Cal Rptr 146, CCH Prod Liab Rep P 12277] In contrast to a motion for summary judgment, which looks behind the pleadings to determine if the claims or defenses of a party are sham or without evidence to support the claim, a motion for judgment on the pleadings is addressed solely to matters appearing from the face of the challenged pleading. [Hughes v Western MacArthur Co. (1987, 1st Dist) 192 Cal App 3d 951, 237 Cal Rptr 738; for discussion of motions for judgment on the pleadings, see PROCEDURE: Responsive Procedures (Ch 10)]

A court may allow a motion for summary judgment to effectively operate as a motion for judgment on the pleadings. If the court finds that the pleading is insufficient, the court has discretion to grant the opposing party leave to amend. [Hejmadi v AMFAC, Inc. (1988, 1st Dist) 202 Cal App 3d 525, 249 Cal Rptr 5, 118 CCH LC P 56626; see also Charpentier v Von Geldern (1987, 3rd Dist) 191 Cal App 3d 101, 236 Cal Rptr 233 (defendant‘s motion for summary judgment necessarily includes test of sufficiency of complaint and is, in effect, motion for judgment on pleadings)] Counsel, however, should note that in Hejmadi the court considered it inappropriate, and bad motion practice, to submit for summary adjudication matters that essentially tested the sufficiency of the pleadings. [Hejmadi v AMFAC, Inc. (1988, 1st Dist) 202 Cal App 3d 525, 249 Cal Rptr 5, 118 CCH LC P 56626]

§ 21:5 Use of summary judgment in First Amendment cases

Because unnecessarily protracted litigation would have a chilling effect on the exercise of First Amendment rights, speedy resolution of cases involving free speech is desirable. Accordingly, summary judgment is a favored remedy in cases involving free speech. [Good Government Group, Inc. v Superior Court of Los Angeles County (1978) 22 Cal 3d 672, 150 Cal Rptr 258, 586 P2d 572, 4 Media L R 2082, cert den 441 US 961, 60 L Ed 2d 1066, 99 S Ct 2406; Sipple v Chronicle Publishing Co. (1984, 1st Dist) 154 Cal App 3d 1040, 201 Cal Rptr 665, 10 Media L R 1690; see Aisenson v American Broadcasting Co. (1990, 2nd Dist) 220 Cal App 3d 146, 269 Cal Rptr 379, 17 Media L R 1881 (speedy resolution of defamation and invasion of privacy cases is desirable, and summary judgment is favored remedy)]

§ 21:6 Use of summary judgment in unlawful detainer and forcible entry cases

 

Summary judgment is available in unlawful detainer and forcible entry cases under CCP §1170.7. Under CCP §1170.5, the motion may be made at any time after the answer is filed, on giving 5 days notice. The motion must be granted or denied on the same basis as a motion under CCP §437c. Under CCP §437c(n), however, subdivisions (a) and (b) of CCP §437c are not applicable to unlawful detainer and forcible entry cases brought pursuant to CCP §§1159 et seq. In addition, CCP §437c(m) provides that nothing in CCP §437c shall be construed to extend the period for trial provided by CCP §1170.5. Since CCP § 1170.7 provides the time for making a motion for summary judgment, it would appear that CCP §437c(n) applies only to the provisions of CCP §437c(a) and (b) relating to the time for making the motion.

§ 21:6 Use of summary judgment in unlawful detainer and forcible entry cases [Revised] [Supp]

 

--p. 13. Replace the text of the section with the following:

Summary judgment is available in unlawful detainer and forcible entry cases under CCP §1170.7. Under CCP §1170.5, the motion may be made at any time after the answer is filed, on giving 5 days notice. The motion must be granted or denied on the same basis as a motion under CCP §437c. Under CCP §437c(q), however, subdivisions (a) and (b) of CCP §437c are not applicable to unlawful detainer and forcible entry cases brought pursuant to CCP §§1159 et seq. In addition, CCP §437c(p) provides that nothing in CCP §437c shall be construed to extend the period for trial provided by CCP §1170.5. Because CCP §1170.7 provides the time for making a motion for summary judgment, it would appear that CCP §437c(p) applies only to the provisions of CCP §437c(a) and (b) relating to the time for making the motion.

§ 21:7 Unavailability of summary judgment in particular actions

 

Summary judgment under CCP §437c is not available in the following actions:

(1) Class action brought under the Consumers Legal Remedies Act (CC §§1750 et seq.) [CC §1781(c)(3)]

(2) Action to terminate parental rights under CC §§232 et seq. [In re Mark K. (1984, 5th Dist) 159 Cal App 3d 94, 205 Cal Rptr 393 (termination procedure has speedy trial requirement which makes summary judgment procedures inappropriate)]

(3) Election contest under Elec C §§20050 et seq. [Anderson v County of Santa Barbara (1976, 2nd Dist) 56 Cal App 3d 780, 128 Cal Rptr 707 (because of inherent inconsistency between procedural requirements of CCP § 437c and statutory scheme governing election contests, summary judgment is not available in election contests)]

§ 21:7 Unavailability of summary judgment in particular actions [Supp]

 

(Note: In 1994, Elec C §§20050, governing election contests in general elections, were repealed and reenacted as Elec C §§16400 et seq. See Stats 1994 ch 920 §§1, 2.)

§ 21:8 Special rule where summary judgment granted as to one of several defendants in action involving injury to person or property

 

In actions which arise out of an injury to the person or to property, when a motion for summary judgment is granted on the basis that one of several defendants was without fault, no other defendant during trial, over plaintiff’s objections, may attempt to attribute fault to or comment on the absence or involvement of the defendant who was granted the motion. [CCP §437c(k)]

§ 21:8 Special rule where summary judgment granted as to one of several defendants in action involving injury to person or property [Revised] [Supp]

 

--p. 14. Add the following at the end of the section:

It has been held that a court cannot refuse to rule on the merits of a summary adjudication motion when the motion will not dispose of an entire cause of action because two separate and distinct wrongful acts are alleged in a single cause of action. [Lilienthal & Fowler v Superior Court (1993, 1st Dist) 12 Cal App 4th 1848, 16 Cal Rptr 2d 458 (multiple acts of malpractice alleged in a single cause of action)]

Ä Caution

Effective January 1, 1994, CCP §437c(f) was amended to state that a motion for summary adjudication may be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. [CCP §437c(f)(1)]

II. SUMMARY ADJUDICATION

21:9. Overview

21:10. Procedure for summary adjudication

21:11. Motion for summary judgment following denial of summary adjudication

§ 21:9 Overview

 

If it is contended that one or more causes of action within an action has no merit, or that there is no merit to all affirmative defenses as to any cause of action, or both, or that there is no merit to a claim for damages as specified in CC § 3294, or that one or more defendants owed or did not owe a duty to the plaintiff or plaintiffs, any party may move for summary adjudication as to that cause or causes of action, that affirmative defense, that claim for damages, or that issue of duty. [CCP §437c(f)] A cause of action has no merit if one or more of the elements of the cause of action, even if not separately pleaded, cannot be established. [CCP §437c(f)]

§ 21:9 Overview [Revised] [Supp]

 

--pp. 14, 15. Replace the text of the section with the following:

A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is an affirmative defense to it, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages as specified in CC §3294, or that one or more defendants owed or did not owe a duty to the plaintiff or plaintiffs. However, a motion for summary adjudication may be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. [CCP §437c(f)(1)] A cause of action has no merit if either of the following exists: (1) one or more of the elements of the cause of action **** cannot be separately established, even if that element is separately pleaded, or (2) a defendant establishes an affirmative defense to that cause of action. [CCP §437c(n)]

§ 21:10 Procedure for summary adjudication

 

Under CCP §437c(f), a motion for summary adjudication may be made by itself or as an alternative to summary judgment. Counsel, however, is advised to check the applicable local rules. For example, the current local rule in San Bernardino County provides that motions for summary judgment of the entire action andor summary adjudication of one or more causes of action, defenses, claim of damages or duty must be prepared as a single motion but with a notation in the title and caption that it is in the "alternative." [San Bernardino County Superior Court Rule 515.1] A motion for summary adjudication proceeds in all procedural respects as a motion for summary judgment. [CCP §437c(f)]

Ä Caution

Code of Civil Procedure §437c(f) was amended effective January 1, 1991. [See Stats 1990 ch 1561] However, some counties have not yet amended their local rules to reflect the statutory amendment.

Ä Practice Note

Counsel should note that summary adjudication cannot be granted in the absence of a specific motion for it. [See Gonzales v Superior Court (1987, 2nd Dist) 189 Cal App 3d 1542, 235 Cal Rptr 106 (language in CCP §437c(f) establishes that motion for summary adjudication cannot be considered by court unless party bringing motion duly gives notice that summary adjudication is being sought)] Accordingly, if counsel believes that he or she may not win a full summary judgment, a motion for summary adjudication of appropriate causes of action and affirmative defenses should be made at the same time.

§ 21:10 Procedure for summary adjudication [Revised] [Supp]

 

--p. 15. Replace the first paragraph of the section with the following:

Under CCP §437c(f)(2), a motion for summary adjudication may be made by itself or as an alternative to summary judgment. Counsel, however, is advised to check the applicable local rules. For example, the current local rule in San Bernardino County provides that motions for summary judgment of the entire action andor summary adjudication of one or more causes of action, defenses, claim of damages or duty must be prepared as a single motion but with a notation in the title and caption that it is in the "alternative." [San Bernardino County Superior Court Rule 515.1] The current local rule in Alameda County requires separate sets of supporting documents (that is, two separate statements of fact) where the motion is made in the alternative. [Alameda County Superior Court Rule 10.10(8)] A motion for summary adjudication proceeds in all procedural respects as a motion for summary judgment. [CCP §437c(f)(2)]

§ 21:11 Motion for summary judgment following denial of summary adjudication

 

A party may not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court, unless that party establishes to the satisfaction of the court, the existence of newly discovered facts or circumstances supporting the issues reasserted in the summary judgment motion. [CCP §437c(f)]

Ä Practice Note

When a second motion is made, it is important for counsel to explain why he or she did not have the new evidence when the original motion was made and how the current circumstances are different from the circumstances at the time of the original motion. For example, a motion for summary adjudication may have been made early in the case, and some new facts were then revealed during the discovery process. Renewals of motions for reconsideration based on an alleged different state of facts are governed by CCP §1008. [For discussion of motions for renewal and reconsideration of motions for summary judgment and summary adjudication, see §21:46; for discussion of renewal of motions and reconsideration of motions in general, see PROCEDURE Motion Practice (Ch 14)]

§ 21:11 Motion for summary judgment following denial of summary adjudication [Revised] [Supp]

 

--p. 15. Replace the first paragraph of the section with the following:

A party may not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court, unless that party establishes to the satisfaction of the court, the existence of newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion. [CCP §437c(f)(2)] For purposes of CCP §437c, a change in law does not include a later enacted statute without retroactive application. [CCP §437c(r)]

III. MOVING FOR SUMMARY JUDGMENT

A. MOVING PAPERS

21:12. Overview

21:13. Notice of motion

21:14. Memorandum of points and authorities

§ 21:12 Overview

A party moving for summary judgment must file and serve (1) a notice of motion; (2) a memorandum of points and authorities; and (3) supporting papers, which may consist of affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice must or may be taken. [CCP §437c(a) and (b)] The supporting papers must include a separate statement of undisputed material facts. [CCP §437c(b); for discussion of the separate statement of undisputed material facts, see §§21:26, 21:27]

§ 21:13 Notice of motion

A notice of motion for summary judgment must comply with CCP § 1010 governing notices and with CRC 311 governing format of papers. Under CCP §1010, a notice of motion must be in writing, must state when and the grounds upon which it will be made, and must state the papers, if any, upon which the notice of motion is to be based. Under CRC 311(a), a notice of motion must state in the opening paragraph the nature of the order being sought and the grounds for issuance of the order. [For detailed discussion of notice of motion, see PROCEDURE: Motion Practice (Ch 14)]

§ 21:14 Memorandum of points and authorities

 

A notice of motion for summary judgment must be accompanied by a memorandum of points and authorities. [CRC 313(a)] The memorandum of points and authorities must contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced. [CRC 313(b)] A memorandum of points and authorities that exceeds 10 pages must include a table of contents and table of authorities. A memorandum of points and authorities that exceeds 15 pages must also include an opening summary of argument. [CRC 313(d)]

Ä Practice Note

Although CRC 315(d) requires a summary of argument only if the memorandum exceeds 15 pages, every memorandum of points and authorities should include such a summary. Counsel should treat the memorandum of points and authorities as being the first document the court will review in order to become familiar with the case and the motion. In addition to a summary of argument, counsel should give the court an overview of the action to provide the court with the background and context for the motion.

Counsel should prepare the memorandum of points and authorities, and all other documents, in a manner designed to require the court to do as little work as possible. In this regard, organization is very important. Counsel should use organizational devices such as headings and subheadings liberally, in order to present the material in an manner that is easy to follow. A topical index is advisable because it provides an easy way to locate the material in which the court is most interested.

§ 21:14 Memorandum of points and authorities [Revised] [Supp]

 

--pp. 16, 17. Replace the existing section with the following:

A notice of motion for summary judgment must be accompanied by a memorandum of points and authorities. [CRC 313(a)] The memorandum of points and authorities must contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced. [CRC 313(b)] The style used in a memorandum of points and authorities must be that set forth in the California Style Manual or that set forth in the most recent edition of the Uniform System of Citation, at the option of the party filing the document. The same style must be used consistently throughout the memorandum. [CRC 313(e)]

In a summary judgment or summary adjudication motion, no opening memorandum of points and authorities may exceed 20 pages in length. No reply or closing memorandum of points and authorities may exceed 10 pages in length. The page limit does not include exhibits, declarations, attachments, and a table of contents. A party may apply to the court, ex parte but with written notice of the application to the other parties, at least 24 hours before the memorandum is due, for permission to file a longer memorandum. The application must state reasons why the argument cannot be made within the 15-page limit. A memorandum that exceeds the page limits will be filed and considered in the same manner as a late filed paper. A memorandum of points and authorities that exceeds 10 pages must include a table of contents and table of authorities. A memorandum of points and authorities that exceeds 15 pages must also include an opening summary of argument. [CRC 313(d)]

Ä Practice Note

Although CRC 313(d) requires a summary of argument only if the memorandum exceeds 15 pages, every memorandum of points and authorities should include such a summary. Counsel should treat the memorandum of points and authorities as being the first document the court will review in order to become familiar with the case and the motion. In addition to a summary of argument, counsel should give the court an overview of the action to provide the court with the background and context for the motion.

Counsel should prepare the memorandum of points and authorities, and all other documents, in a manner designed to require the court to do as little work as possible. In this regard, organization is very important. Counsel should use organizational devices such as headings and subheadings liberally, in order to present the material in an manner that is easy to follow. A topical index is advisable because it provides an easy way to locate the material in which the court is most interested.

Also, most judges will refuse to extend the page limit except in the most complex cases. Counsel should inquire regarding local practice before writing the overlong brief. Undersize type, excessive lines, narrow margins, and misnumbering of pages are all violations of the California Rules of Court and may result in rejection of your pleadings.

Good practice suggests and local rules may require your moving papers and supporting documents to be carefully organized. [See, for example, Alameda County Superior Court Rule 10.10(19)(h)(3) (requiring cited deposition testimony to be highlighted for ease of location by the judge)]

B. SUPPORTING EVIDENCE

1. OVERVIEW

21:15. Supporting papers

21:16. Format of evidence in support of or in opposition to motion for summary judgment

§ 21:15 Supporting papers

 

A motion for summary judgment must be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice must or may be taken. [CCP §437c(b)] The supporting papers must include a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed. [CCP §437c(b); for discussion of the separate statement of undisputed material facts, see §§21:26, 21:27]

§ 21:15 Supporting papers [Supp]

 

--p. 18. Add the following at the end of the section:

Ä Practice Note

Code of Civil Procedure section 437c(d) provides that objections to the sufficiency of the evidence presented in the affidavits or declarations must be made "at the hearing" or they are waived. Although the evidentiary objections are thus not technically required to be written, most courts will not be able to handle numerous, oral objections at the hearing. Local rules may require objections in writing. [See, for example, Alameda County Superior Court Rule 10.10(22)] The best practice is to file written objections with the opposition or reply and to argue only the most critical points.

Nothing in the statute requires written or formal rulings on the objections; the court need only make it clear that only admissible evidence has been considered in ruling. [Biljac Associates v First Interstate Bank (1990, 1st Dist) 218 Cal App 3d 1410, 267 Cal Rptr 819]

§ 21:16 Format of evidence in support of or in opposition to motion for summary judgment

 

Counsel is advised to check the applicable local rules as to format requirements for evidence submitted in support of or in opposition to a motion for summary judgment. For example, the current local rule in Alameda County requires supporting evidence to be contained in a separate document appropriately titled. If five or more items of evidence are submitted in support of or in opposition to the motion, the first page following the caption page must consist of an "Index to Exhibits" which must describe with precision the organization of the evidence. [Alameda County Superior Court Rule (19)(a)] The required format for the "Index to Exhibits" is set forth in Alameda County Superior Court Rule (19)(b). Under the current local rule in San Bernardino County, all exhibits in support of or in opposition to a motion for summary judgment must be contained in a separate set of documents and must be securely attached together at the top by a method that permits the pages to be turned easily and permits the entire content of each page to be read. Each exhibit must be tabbed at the bottom in a way so as to be easily identified. The pages within each exhibit must be clearly numbered at the bottom of the page. An index to the exhibits must be attached. [San Bernardino County Superior Court Rule 515.6; for examples of local rule requirements as to deposition evidence see §21:22]

§ 21:16 Format of evidence in support of or in opposition to motion for summary judgment [Revised] [Supp]

 

--p. 18. Change Alameda County Superior Court Rule (19)(a) to Alameda County Superior Court Rule 10.10(19)(a) and change Alameda County Superior Court Rule (19)(b) to Alameda County Superior Court Rule 10.10(19)(b).

2. AFFIDAVITS AND DECLARATIONS

21:17. Overview

21:18. Admissible evidence; personal knowledge and competency requirements

21:19. Evidentiary facts requirement

21:20. Documentary evidence

§ 21:17 Overview

An "affidavit" is a written declaration under oath, made without notice to the adverse party. [CCP §2003] A "declaration" is a written statement that is unsworn but made under penalty of perjury [see CCP §2015.5] and is an alternative to the burdensome procedure of a sworn statement taken before a notary or other officer authorized to administer oaths [see Witkin, 6 Cal. Proc. 3d, Provisional Remedies, §3]. A declaration may be submitted in lieu of a sworn affidavit if certain statutory formalities are adhered to. [See CCP §2015.5] Declarations are used more commonly in support of motions for summary judgment and summary adjudication than affidavits.

Under CRC 315(a), the caption of a declaration or an affidavit must state the name of the declarant or affiant and must specifically identify the motion or other proceeding it supports or opposes. [For detailed discussion of affidavits and declarations, see PROCEDURE: Affidavits, Declarations, and Verification of Pleadings (Ch 11)]

§ 21:18 Admissible evidence; personal knowledge and competency requirements

Affidavits or declarations supporting or opposing a motion for summary judgment or summary adjudication must be made on personal knowledge, must set forth admissible evidence, and must show affirmatively that the affiant is competent to testify to the matters stated in the affidavit or declaration. [CCP § 437c(d); Zuckerman v Pacific Savings Bank (1986, 2nd Dist) 187 Cal App 3d 1394, 232 Cal Rptr 458 (personal knowledge and competency must be shown in the supporting and opposing affidavits and declarations); see Ev C § 702]

Ä Practice Note

It is not enough to simply use the statutory language that the facts stated in a declaration are within the personal knowledge of the declarant and that the declarant is competent to testify as a witness as to those facts. The text itself must demonstrate the requisite personal knowledge and competency. [See Snider v Snider (1962, 1st Dist) 200 Cal App 2d 741, 19 Cal Rptr 709]

Matters which would be excluded under the rules of evidence if proferred by a witness in a trial, such as hearsay, conclusions, or impermissible opinions, will be disregarded in supporting or opposing affidavits or declarations if an evidentiary objection is made, either orally or in writing. Otherwise these objections will be deemed waived. [Hayman v Block (1986, 2nd Dist) 176 Cal App 3d 629, 222 Cal Rptr 293]

§ 21:19 Evidentiary facts requirement

Affidavits or declarations supporting or opposing a motion for summary judgment must contain evidentiary, rather than ultimate facts or conclusions. [See Sheppard v Morgan Keegan & Co. (1990, 1st Dist) 218 Cal App 3d 61, 266 Cal Rptr 784, 116 CCH LC P 56353 (moving party‘s statement in declaration that opposing party had made "disparaging and demeaning remarks" was conclusory); Sesma v Cueto (1982, 4th Dist) 129 Cal App 3d 108, 181 Cal Rptr 12 (doctor’s statement in declaration that "fetus was stillborn" did not meet requirement for evidentiary facts in that it did not enlighten court as to child‘s vital signs, such as breathing, heartbeat, signs of cerebration, muscular activities or lack thereof); Witkin, 6 Cal. Proc. 3d, Proceedings Without Trial, §288] In some situations, lay opinion is admissible. [See Ev C §800; Chatman v Alameda County Flood Control etc. Dist. (1986, 1st Dist) 183 Cal App 3d 424, 228 Cal Rptr 257 (whenever feasible, "concluding" should be left to trier of fact; however, when details observed, even though recalled, are too complex or too subtle for concrete description by witness, witness may state his or her general impression)]

§ 21:20 Documentary evidence

 

Documentary evidence submitted in support of a motion for summary judgment or summary adjudication must be in the form of admissible evidence. In particular, documentary evidence must be authenticated [Ev C §§1400 et seq.], must comply with the best evidence rule [Ev C §§1500 et seq.], and, if hearsay, must come within an exception to the hearsay rule [Ev C §§1200 et seq.]. Authentication is most often accomplished by declaration. [See California Practice Guide Civil Procedure Before Trial (1990), Summary Judgment and Summary Adjudication of Issues, §§10:169, 10:170, The Rutter Group]

Counsel is advised to check the applicable local rules for requirements as to authentication of documentary evidence. For example, the current local rule in San Francisco County provides that a party relying on a document must submit an affidavit or declaration, or a response to discovery, that identifies and authenticates the document. [San Francisco Law and Motion Manual, Rule 76(c)(1)] Similarly, the current local rule in Los Angeles County provides that all documents offered in support of or opposition to a motion for summary judgment or summary adjudication must be properly identified and authenticated by declaration or other appropriate method. [Los Angeles County Law and Discovery Policy Manual, Para. 206]

As to compliance with the best evidence rule, under the current local rule in Alameda County, a party may comply with the best evidence rule by bringing the original document to the hearing and presenting it for inspection. If the opposing party has not seen the original before, the opposing party should be invited to inspect the original before the hearing and a declaration to that effect should be filed. Following this procedure avoids delay during the hearing, but it does not excuse production of the original at the hearing except when the document’s existence and contents are admitted by verified pleadings, answers to interrogatories, or responses, or failure to respond to request for admissions. If the document‘s existence and contents have been admitted, the moving papers must refer to the pleadings or discovery which contains the admission. [Alameda County Superior Court Rule 19(f)]

The current local rule in Los Angeles County provides that originals of documents offered in support or in opposition to a motion for summary judgment should not be filed. Copies should be submitted with the moving or opposing papers and the originals brought to court at the time of the hearing, unless the parties stipulate in writing that the copies are sufficient for purposes of the motion. [Los Angeles County Law and Discovery Policy Manual, Par. 206]

§ 21:20 Documentary evidence [Revised] [Supp]

 

--p. 21. Change the Alameda County Superior Court Rule cite from Alameda County Superior Court Rule 19(f) to Alameda County Superior Court Rule 10.10(19)(f).

3. ADMISSIONS; DEPOSITIONS; RELIANCE ON PLEADINGS

21:21. Admissions

21:22. Depositions

21:23. Reliance on pleadings

§ 21:21 Admissions

A motion for summary judgment may be supported by admissions. [CCP §437c(b)] A party may rely on admissions contained in the pleadings of his or her adversary [see Uram v Abex Corp. (1990, 1st Dist) 217 Cal App 3d 1425, 266 Cal Rptr 695, CCH Prod Liab Rep P 12441, reh den (Cal App 1st Dist) 1990 Cal App LEXIS 261 (defendant moving for summary judgment may rely on allegations, contained in plaintiff’s complaint, which constitute judicial admissions); see also Troche v Daley (1990, 4th Dist) 217 Cal App 3d 403, 266 Cal Rptr 34 (reliance on pleadings of one‘s adversary allowed in summary judgment motion)], or admissions obtained through discovery [see Hejmadi v AMFAC, Inc. (1988, 1st Dist) 202 Cal App 3d 525, 249 Cal Rptr 5, 118 CCH LC P 56626 (summary disposition of defamation cause of action was proper where truth of allegedly defamatory statement was effectively conceded in plaintiff’s deposition and opposition papers)].

Admissions obtained through discovery that become relevant to the determination, on motion for summary judgment, of whether or not there exist triable issues of fact, have a very high credibility value and are entitled to and should receive a kind of deference not normally accorded evidentiary allegations in affidavits. [D‘Amico v Board of Medical Examiners (1974) 11 Cal 3d 1, 112 Cal Rptr 786, 520 P2d 10] When a defendant can establish his or her defense with the plaintiff’s admissions sufficient to pass the strict construction test imposed on the moving party, the credibility of the admissions are valued so highly that the controverting affidavits may be disregarded. [Leasman v Beech Aircraft Corp. (1975, 1st Dist) 48 Cal App 3d 376, 121 Cal Rptr 768; see Hejmadi v AMFAC, Inc. (1988, 1st Dist) 202 Cal App 3d 525, 249 Cal Rptr 5, 118 CCH LC P 56626 (party is bound by admissions made in the course of discovery and on motion for summary judgment, no further evidence of matters so deemed admitted is necessary); but see Price v Wells Fargo Bank (1989, 1st Dist) 213 Cal App 3d 465, 261 Cal Rptr 735 (summary judgment should not be based on tacit admissions or fragmentary and equivocal concessions that are contradicted by other credible evidence; broad language of Leaseman should be accepted with caution); but see also FPI Development, Inc. v Nakashima (1991, 3rd Dist) 231 Cal App 3d 367, 282 Cal Rptr 508 (admissions of a party in summary judgment proceedings are binding unless there is a credible explanation for the inconsistent positions taken)]

§ 21:22 Depositions

 

Depositions may be used in support of or in opposition to a motion for summary judgment. [CCP §437c(b); Leasman v Beech Aircraft Corp. (1975, 1st Dist) 48 Cal App 3d 376, 121 Cal Rptr 768] Counsel is advised to check the applicable local rules as to the use of deposition transcripts in support of or in opposition to a motion for summary judgment. For example, the current local rule in San Bernardino County sets forth the required format for deposition testimony used as an exhibit. The exhibit may contain only those pages of the transcript that are relevant. The material portions of the transcript testimony must be highlighted. The authenticating affidavit must precede the cover page of the transcript and the name of the deponent must appear at the bottom of each page of the transcript. [San Bernardino County Superior Court Rule 515.6] Similarly, under the current local rule in Alameda County, when a deposition is used as an exhibit, the exhibit may contain only the relevant pages of the transcript, the page numbers must be clearly visible, and the material portions of the deposition testimony must be highlighted. The first page of any deposition used as an exhibit must be the title page of the transcript, indicating the name of the deponent and the date of the deposition. [Alameda County Superior Court Rule 19(h)]

§ 21:22 Depositions [Revised] [Supp]

 

--p. 23. Change the Alameda County Superior Court Rule cite from Alameda County Superior Court Rule 19(h) to Alameda County Superior Court Rule 10.10(19)(h).

§ 21:23 Reliance on pleadings

A party may not rely on his or her own pleadings as a factual source on a motion for summary judgment. [Romak Iron Works v Prudential Ins. Co. (1980, 1st Dist) 104 Cal App 3d 767, 163 Cal Rptr 869] Either party, however, can rely on the other‘s pleadings. [Cayley v Nunn (1987, 2nd Dist) 190 Cal App 3d 300, 235 Cal Rptr 385] For example, a defendant, in addition to his or her own declaration, can rely on an allegation of the complaint; there is no need for the defendant’s declaration to repeat matters already asserted in the complaint. [Troche v Daley (1990, 4th Dist) 217 Cal App 3d 403, 266 Cal Rptr 34]

4. JUDICIAL NOTICE

21:24. Overview

21:25. Requesting judicial notice; judicial notice of court file

§ 21:24 Overview

A motion for summary judgment may be supported by matters of which judicial notice must or may be taken. [CCP §437c(b)] Matters which must be judicially noticed are set forth in Ev C § 451. Matters which may be judicially noticed are set forth in Ev C §452.

§ 21:25 Requesting judicial notice; judicial notice of court file

 

A court may take judicial notice of the existence of each document in a court file, but can only take judicial notice of the truth of facts asserted in documents such as orders, findings of fact and conclusions of law, and judgments. A court cannot take judicial notice of the truth of hearsay allegations just because they are part of a court record or file. [In re David C. (1984, 5th Dist) 152 Cal App 3d 1189, 200 Cal Rptr 115]

Under CRC 323(b), a party requesting judicial notice of material under Ev C §§452 or 453 must provide the court and each party with a copy of the material. If the material is part of a file in the court in which the matter is being heard, the party must specify in writing the part of the court file sought to be judicially noticed, and must make arrangements with the clerk to have the file in the courtroom at the time of the hearing. [CRC 323(b)]

Ä Caution

Any incorporation by reference of matter in the court‘s file must set forth with specificity the exact matter to which reference is being made and must not incorporate the entire file. [CCP §437c(b)]

Ä Practice Note

Even if not required by local rule, counsel is advised to attach copies of the most significant material of which judicial notice is requested so that the court will not have to search through the file for it.

Counsel is advised to check the applicable local rules as to requirements for judicial notice. For example, the current local rule in Alameda County requires any request for judicial notice to be made in a separately captioned document listing the specific items of which notice is requested and stating the authority for the request. Copies of these items must be attached to the request as exhibits and indexed, separated, tabbed, and paginated in the same manner as deposition and discovery products. Items judicially noted must be set forth in the index and designated as "JN1," "JN2," etc. Where judicial notice of a local county court file is requested, the party requesting the notice must arrange for the file to be in the courtroom at the time of the hearing. Where the file sought to be noticed is that of an action outside the local county, certified copies of the appropriate file contents will be acceptable in lieu of the original file. [Alameda County Superior Court Rule 21] Under the current local rule in Los Angeles County, if the matter to be noticed is contained in a file of the District of the Los Angeles Superior Court in which the motion is to be heard, the party must, at least 5 days prior to the hearing, by separate document containing the case name and number, filed directly in the department where the matter is noticed, request the clerk to order delivery of the file for the hearing. The file must be received by the department in which the matter is heard at least 2 court days before the hearing so that it is available to the judge when he or she is preparing for the hearing. Notwithstanding these requirements, it is also good practice to provide the court with a copy of the material to be noticed, on the possibility that the file cannot be located in time for the hearing. If the matter to be judicially noticed is contained in a file of any other court or of another District of the Los Angeles Superior Court, such file must be subpoenaed for the date of the hearing, or a certified copy of the record or so much of the record as the party wants judicially noticed must accompany the moving papers. [Los Angeles County Law and Discovery Policy Manual, Para. 170, 171]

§ 21:25 Requesting judicial notice; judicial notice of court file [Revised] [Supp]

 

--p. 24. Change the Alameda County Superior Court Rule cite from Alameda County Superior Court Rule 21 to Alameda County Superior Court Rule 10.10(21).

5. SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS

21:26. Overview

21:27. Format of separate statement of undisputed material facts

§ 21:26 Overview

 

The papers submitted in support of a motion for summary judgment must include a separate statement setting forth plainly and concisely all material facts the moving party contends are undisputed. Each of the material facts stated must be followed by a reference to the supporting evidence. The failure to comply with this requirement of a separate statement, in the court’s discretion, may constitute a sufficient ground for denial of the motion. [CCP §437c(b)]

Ä Caution

A memorandum of points and authorities does not satisfy the requirement of a separate statement under CCP §437c(b). [Blackman v Burrows (1987, 2nd Dist) 193 Cal App 3d 889, 238 Cal Rptr 642; for discussion of memorandum of points and authorities, see §21:14]

Ä Practice Note

The separate statement of undisputed material facts should make clear to which aspect of the motion each fact relates. For example, if a motion for summary adjudication is being made as an alternative to a motion for summary judgment, counsel should consider organizing the undisputed material facts relating to the motion for summary judgment in a category separate from the facts relating to the motion for summary adjudication. Similarly, if a party is moving for summary adjudication of more than one cause of action or affirmative defense, the facts relating to each cause of action or affirmative defense should be separately categorized.

§ 21:26 Overview [Revised] [Supp]

 

--p. 25. Add the following at the end of the section:

Each issue upon which summary adjudication is sought must be phrased in clear, unambiguous language "appropriate for adoption by the court." Moreover, the concurrence of the grounds stated in the notice and the issues stated in the separate statement is jurisdictional; variance or ambiguity may require denial. [United Community Church v Garcin (1991, 2nd Dist) 231 Cal App 3d 327, 282 Cal Rptr 368]

§ 21:27 Format of separate statement of undisputed material facts

While it is not required, it is preferable that the statement be in a separately bound or filed document not physically attached to the memorandum of points and authorities. The statement should list in numbered paragraphs, without argumentation, each material fact necessary to entitle the moving party to summary judgment. Immediately following each fact there should be a reference to the supporting evidence. [Blackman v Burrows (1987, 2nd Dist) 193 Cal App 3d 889, 238 Cal Rptr 642]

Counsel is advised to check the applicable local rules as to the format of the separate statement of undisputed material facts. For example, the current local rule in Marin County requires a side-by-side format. In numerical sequence, the undisputed material facts must be listed on the left-hand side of the page and the supporting evidence immediately opposite on the right-hand side of the page. Citation to the evidence in support of each material fact must include reference to the exhibit, title, page, and line number as shown in the example in Rule 2.13(g). [Marin County Superior Court Rules 2.13(f) and (g); see also San Bernardino County Superior Court 515.3 (requiring side-by-side format)] Similarly, the current local rule in San Francisco County provides that the separate statement must be organized in such a way that it can be compared, side-by-side, with the responding separate statement. Evidentiary references in the separate statement must be to specific paragraphs and to specific pages and lines of identified exhibits. [San Francisco County Law and Motion Manual, Rule 77(a)]

C. PROCEDURE

21:28. Time for making motion

21:29. Service of notice of motion

21:30. Reply to opposition

§ 21:28 Time for making motion

A motion for summary judgment may be made at any time after 60 days have elapsed since the general appearance in the action or proceeding of each party against whom the motion is directed, or at such earlier time after the general appearance as the court, with or without notice and upon good cause shown, may direct. [CCP §437c(a)] Under CCP §1014, a defendant appears in an action when the defendant answers, demurs, files a notice of motion to strike, files a notice of motion to transfer pursuant to CCP §396b, or gives the plaintiff written notice of appearance, or when an attorney gives notice of appearance for the defendant.

Ä Caution

The filing of a motion for summary judgment does not extend the time within which a party must otherwise file a responsive pleading. [CCP §437c(a)]

The time by which a motion for summary judgment must be filed is not set forth in CCP §437c. However, since the motion and supporting papers must be served on all other parties at least 28 days before the hearing, and since the motion must be heard no later than 30 days before trial, it appears that the motion must be filed at least 58 days before trial. [See Wells Fargo Bank v Superior Court (1988, 1st Dist) 206 Cal App 3d 918, 254 Cal Rptr 68; for discussion of 28-day period for service of notice of motion, see §21:29; for discussion of 30-day period for hearing, see §21:35]

Ä Practice Note

If a court continues a trial, the time within which to make a motion for summary judgment or summary adjudication is likewise extended. Accordingly, if the opposing party requests a continuance within 58 days of trial, counsel should obtain an assurance from the opposing party that a motion for summary judgment or summary adjudication will not be made based on the later trial date. If the opposing party will not agree to refrain from moving for summary judgment or summary adjudication, counsel should request an order from the court prohibiting the opposing party from so moving as a condition of any continuance. [See Green v Bristol Myers Co. (1988, 2nd Dist) 206 Cal App 3d 604, 253 Cal Rptr 745]

Ä Practice Note

If an action will involve expert testimony, counsel should consider making a motion for summary judgment considerably earlier than the time disclosure of experts is required, to gain insight as to the opposing party‘s position. Counsel, however, should be aware that the opposing party could call a different expert witness at trial to testify differently.

§ 21:29 Service of notice of motion

 

Notice of the motion and supporting papers must be served on all other parties to the action at least 28 days before the time appointed for hearing. However, if the notice is served by mail, the required 28-day period of notice must be increased by 5 days if the place of address is within the State of California, 10 days if the place of address is outside the State of California but within the United States, and 20 days if the place of address is outside the United States. [CCP §437c(a)]

Under CCP §437c(b), CCP §1005 (time for giving notice of motion or filing opposing papers; supporting materials) and CCP §1013(a) (service by mail; manner; completion) extending the time within which a right may be exercised or an act may be done, do not apply to CCP §437c.

§ 21:29 Service of notice of motion [Revised] [Supp]

 

--pp. 27, 28. Replace the text of the section with the following:

Notice of the motion and supporting papers must be served on all other parties to the action at least 28 days before the time appointed for hearing. However, if the notice is served by mail, the required 28-day period of notice must be increased by 5 days if the place of address is within the State of California, 10 days if the place of address is outside the State of California but within the United States, and 20 days if the place of address is outside the United States. If the notice is served by facsimile transmission, Express Mail, or another method of delivery providing for overnight delivery, the required 28-day period of notice is increased by two court days. [CCP §437c(a)]

Under CCP §437c(b), CCP §1005 (time for giving notice of motion or filing opposing papers; supporting materials) and CCP §1013**** (service by mail, facsimile transmission, Express Mail, or another method of delivery providing for overnight delivery; manner; completion) extending the time within which a right may be exercised or an act may be done, do not apply to CCP §437c.

§ 21:30 Reply to opposition

 

Any reply to the opposition must be served and filed by the moving party not less than 5 days preceding the noticed or continued date of hearing, unless the court for good cause orders otherwise. [CCP §437c(b)]

Ä Practice Note

Evidentiary material may be submitted with the reply. [See Weiss v Valenzuela (1988, 2nd Dist) 204 Cal App 3d 1094, 251 Cal Rptr 727 (CCP §437c(b) does not expressly or impliedly prohibit inclusion of evidentiary matter with reply)] Counsel, however, should consider whether the submission of additional evidentiary material is advisable because additional evidence might tend to indicate that the opposition raised a triable issue of fact.

§ 21:30 Reply to opposition [Revised] [Supp]

 

--p. 28. Replace the Practice Note at the end of the section with the following:

Ä Practice Note

Although CCP §437c(b) does not expressly prohibit inclusion of further evidence in the reply, the granting of the motion based on such evidence risks reversal for lack of notice and opportunity to oppose. Although one court has allowed evidence in the reply [see Weiss v Valenzuela (1988, 2nd Dist) 204 Cal App 3d 1094, 251 Cal Rptr 727], another court has suggested that further notice is required to allow adequate opposition [see Juge v County of Sacramento (1993, 3rd Dist) 12 Cal App 4th 59, 15 Cal Rptr 2d 598].

IV. OPPOSING MOTION FOR SUMMARY JUDGMENT

A. OVERVIEW

21:31. Opposition papers

21:32. Separate statement in opposition to motion for summary judgment

§ 21:31 Opposition papers

An opposition to a motion for summary judgment, where appropriate, must consist of affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice must or may be taken. [CCP §437c(b)] The opposition papers must include a separate statement that responds to each of the material facts contended by the moving party to be undisputed. [CCP §437c(b)] Like affidavits and declarations supporting a motion for summary judgment, opposing affidavits and declarations must be made on personal knowledge, set forth admissible evidence, and show affirmatively that the affiant is competent to testify to the matters stated in the affidavit or declaration. [CCP §437c(d); for discussion of affidavits and declarations in support of a motion for summary judgment, see §§21:17-21:20; for discussion of requirements as to documentary evidence, see §21:20]

Ä Practice Note

In addition to establishing a triable issue of fact, opposing declarations should also include sufficient information about the underlying facts in the case. The purpose of this is to create a full and sympathetic record for appeal, in the event the motion is granted.

§ 21:32 Separate statement in opposition to motion for summary judgment

 

A separate statement filed in opposition to a motion for summary judgment must (1) indicate whether the opposing party agrees or disagrees that those facts contended by the moving party to be undisputed are undisputed, and (2) set forth plainly and concisely any other material facts the opposing party contends are disputed. [CCP §437c(b)]

Ä Caution

Failure to comply with the requirement of a separate statement in opposition to a motion for summary judgment may constitute a sufficient ground, in the court’s discretion, for granting the motion for summary judgment. [CCP §437c(b)]

Counsel is advised to check the applicable local rules as to the content and format of a separate statement in opposition to a motion for summary judgment. For example, under the current local rule in Alameda County, each material fact said by the moving party to be without substantial controversy must be set out verbatim on the left-hand side of the page, together with the evidence said by the moving party to establish that fact, complete with the moving party‘s references to exhibits. On the right-hand side of the page, directly opposite the recitation of the moving party’s statement of material facts, the response must unequivocally indicate whether it is "disputed" or "undisputed" that the fact is without controversy. Where the opposing party contends that the fact is disputed, the party must state the nature of the disagreement and describe the admissible evidence that supports its position that the disagreement exists, citing exhibit, title, page, and line number of the evidence so submitted. [Alameda County Superior Court Rule 12]

Under the current local rule in Orange County, the statement must quote each of the moving party‘s claimed undisputed material facts, and, if disputed, specifically cite evidence establishing each such contention. The opposing statement must also set forth the responding party’s contention of any additional facts raising triable issues that prevent summary judgment or summary adjudication. [Orange County Superior Court Rule 518(F)]

§ 21:32 Separate statement in opposition to motion for summary judgment [Revised] [Supp]

 

--p. 29. Change the Alameda County Superior Court Rule cite from Alameda County Superior Court Rule 12 to Alameda County Superior Court Rule 10.10(12).

B. PROCEDURE

21:33. Time for filing opposition

21:34. Continuance

§ 21:33 Time for filing opposition

Any opposition to a motion for summary judgment must be served and filed not less than 14 days preceding the noticed or continued date of hearing, unless the court for good cause orders otherwise. [CCP §437c(b)]

§ 21:34 Continuance

Under CCP §437c(h), if it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court must deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had, or the court may make any other order as may be just.

Ä Practice Note

Recent appellate decisions have upheld trial court denials of requests for continuances because the showing was inadequate. [See Hill v Physicians & Surgeons Exchange (1990, 4th Dist) 225 Cal App 3d 1, 274 Cal Rptr 702, 90 CDOS 8323 (denial of request for continuance was proper where opposing party‘s pleadings contained no affidavit detailing facts to show existence of evidence and reasons why this evidence could not be presented at time of hearing); Mahoney v Southland Mental Health Associates Medical Group (1990, 2nd Dist) 223 Cal App 3d 167, 272 Cal Rptr 602 (denial of request for continuance was proper where opposing party’s attorney failed to present any affidavit or declaration to the court or to indicate orally that his request for continuance was founded on need to obtain additional facts concerning case)] Therefore, counsel seeking a continuance in reliance on CCP §437c(h) should be careful to provide specific reasons.

Counsel is advised to check the applicable local rules as to opposition to a motion for summary judgment under CCP § 437c(h). For example, under the current local rule in San Bernardino County, any opposition on the basis on CCP § 437c(h), must give detailed and specific information as to: (1) facts establishing a likelihood that controverting evidence may exist; (2) specific reasons why such evidence cannot be presented at the present time; (3) an estimate of the time necessary to obtain such evidence; and (4) steps or procedures the opposing party intends to take to obtain such evidence. [San Bernardino County Superior Court Rule 515.7] The current local rule in Orange County provides that when a motion requires substantial preparation for its defense, or the evidence is distant, the court may place the matter off calendar. [Orange County Superior Court Rule 518(H)]

V. HEARING AND RULING BY COURT

A. HEARING

§ 21:35 Time for hearing

The motion for summary judgment must be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise. [CCP §437c(a)] The 30-day time limit on summary judgment hearings should be calculated based on the trial date in existence when the motion is noticed, regardless of whether that is the original trial date. [Green v Bristol Myers Co. (1988, 2nd Dist) 206 Cal App 3d 604, 253 Cal Rptr 745] The 30-day limit is necessary to permit the completion of discovery and to provide the trial court with sufficient time to consider the motion and any supplemental papers to be filed. [Green v Bristol Myers Co. (1988, 2nd Dist) 206 Cal App 3d 604, 253 Cal Rptr 745]

Counsel is advised to check the applicable local rules as to the timing of a motion for summary judgment or summary adjudication. For example, the current local rule in Los Angeles County provides that motions set close to the 30-day cutoff date are disfavored. The Los Angeles rule also provides that counsel should be aware that a defective motion made on the eve of the cutoff date leaves no time for correction. [Los Angeles County Law Departments Policy Manual, Para. 212] A trial court, however, may not refuse to hear a summary judgment motion filed within the time limits of CCP §437c. Local rules and practices may not be applied so as to prevent the filing of such a motion. [Sentry Ins. Co. v Superior Court (1989, 1st Dist) 207 Cal App 3d 526, 255 Cal Rptr 13]

B. OBJECTIONS TO EVIDENCE

21:36. Overview

21:37. Form of objections to evidence

§ 21:36 Overview

Under CCP §437c(b), evidentiary objections not made at the hearing will be deemed waived. Under CCP §437c(d), as amended effective January 1, 1991, any objections based on the failure to comply with the requirements of CCP §437c(d) must be made at the hearing or will be deemed waived. [CCP §437c(d)] It was the intent of this legislation to provide that all objections to the form and substance of the moving and opposing papers must be made in the trial court and to expressly overrule Witchell v De Korne (1986, 2nd Dist) 179 Cal App 3d 965, 225 Cal Rptr 176 and Zuckerman v Pacific Savings Bank (1986, 2nd Dist) 187 Cal App 3d 1394, 232 Cal Rptr 458, which had permitted them to be raised for the first time on appeal. [Stats 1990 ch 1561 §1]

§ 21:37 Form of objections to evidence

A party desiring to make objections to evidence in the papers on a motion for summary judgment must either submit objections in writing pursuant to CRC 345 or make arrangements for a court reporter to be present at the hearing. [CRC 343] A written objection to evidence in support of or in opposition to a motion for summary judgment must state the page and line number of the document to which objection is made, and must state the grounds of objection with the same specificity as a motion to strike evidence made at trial. Written objections must be filed and served no later than 4:30 p.m. on the third court day preceding the hearing. [CRC 345]

Counsel is advised to check the applicable local rules as to the required form for objections to evidence. For example, under the current local rule in San Bernardino County, a party desiring to make objections to evidence in the papers on a motion must submit the objections in writing. [San Bernardino County Superior Court Rule 515.10] A written objection to evidence in support of or in opposition to a motion for summary judgment must state the page and line number of the document to which objection is made, and must state the grounds of objection with the same specificity as a motion to strike evidence made at trial. Written objections must be filed and served at the same time as the opposition to the motion, unless such objections are to the evidence offered by the opposing party; then they are to be served and filed at the time of any reply papers. [San Bernardino County Superior Court Rule 515.10; see CRC 345] All evidentiary objections must be presented in a separate document and must not be combined with the memorandum of points and authorities. [San Bernardino County Superior Court Rule 515.10]

The current local rule in Alameda County provides that any objections to evidence in support of or in opposition to motions for summary judgment or summary adjudication must be set forth in a separate pleading supported by a separate memorandum of points and authorities. The objection must specify the evidence to which it refers by exhibit number with line and page notation where appropriate and the Evidence Code grounds for the objection. In separately numbered paragraphs in the left column, which must be entitled "Evidence," the evidence to which the party objects must be set forth. In a corresponding numbered paragraph in the right column, the Evidence Code objection must be stated. [Alameda County Superior Court Rule 10.10(22)]

Ä Practice Note

Counsel should consider filing a separate document entitled "Objections to Evidence," even if such a document is not required by local rule.

C. BURDEN OF PROOF

21:38. Burden of proof of moving party

21:39. Burden of proof of opposing party

21:40. Construction of affidavits

§ 21:38 Burden of proof of moving party

 

Summary judgment is properly granted only when the evidence in support of the moving party establishes that there is no issue of material fact to be tried. The moving party bears the burden of furnishing supporting documents that establish that the claims of the adverse party are entirely without merit on any legal theory. [Lipson v Superior Court (1982) 31 Cal 3d 362, 182 Cal Rptr 629, 644 P2d 822; Olson v Federal Ins. Co. (1990) 219 Cal App 3d 252, 268 Cal Rptr 90]

Where the moving party is a defendant, he or she must either negate a necessary element of the plaintiff‘s case or state a complete defense. A defendant moving for summary judgment must bear the burden of negating every alternative theory of liability presented by the pleadings. [Garcia v Rockwell Internat. Corp. (1986, 4th Dist) 187 Cal App 3d 1556, 232 Cal Rptr 490, 106 CCH LC P 55694] Where the moving party is the plaintiff, the burden is to prove every element necessary to establish its right to the relief it seeks and to disprove every affirmative defense asserted against it. [United Community Church v Garcin (1991, 2nd Dist) 231 Cal App 3d 327, 282 Cal Rptr 368]

§ 21:38 Burden of proof of moving party [Revised] [Supp]

 

--pp. 33, 34. Replace the text of the section with the following:

Where the moving party is a defendant or cross-defendant, he or she has the burden of proving that the action has no merit. [See CCP §437c(a), (f)(1), and (o)(2)] For purposes of motions for summary judgment and summary adjudication, a defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. [CCP §437c(o)(2); for discussion of plaintiff’s or cross-complainant‘s burden of proof when opposing defendant’s or cross-defendant‘s motion for summary judgment, see §21:39]

Where the moving party is a plaintiff or cross-complainant, the burden is to prove that there is no defense to the action. [See CCP §437c(a), (f)(1), and (o)(1)] For purposes of motions for summary judgment and summary adjudication, a plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on that cause of action. [CCP §437c(o)(1); for discussion of defendant’s or cross-defendant‘s burden of proof when opposing plaintiff’s or cross-complainant‘s motion for summary judgment, see §21:39]

Ä Caution

Recent amendments to CCP §437c appear to have significantly changed the burden of proof of a plaintiff or cross-complainant who moves for summary judgment.

In the first reported case to analyze CCP §437c since it was last amended, the Second District Court of Appeal has interpreted the 1992 and 1993 amendments to eliminate prior case law which required a party moving for summary judgment to disprove, or "negate," the opposing party’s cause of action. [See Union Bank v Superior Court (1995, 2nd Dist) 31 Cal App 4th 573, 37 Cal Rptr 2d 653]

In Union Bank, the court analyzed the legislative history of CCP §473c and found that both legislatures unanimously intended unequivocally to change a portion of California‘s summary judgment law to make it more similar to federal law. The portion of the law found to have been changed in the amended statute was descibed by the Union Bank court as self-evident in the language of the statute itself and clearly supported by both the content and context of the legislative history. [Union Bank v Superior Court (1995, 2nd Dist) 31 Cal App 4th 573, 37 Cal Rptr 2d 653]

However, the full extent of the change in the law is not yet without controversy because the court in Union Bank expressly did not rule on other issues concerning the manner Fed RCP 56 may apply to California summary judgment motions or the further applicability of Celotex Corp. v Catrett (1986) 477 US 317, 91 L Ed 2d 265, 106 S Ct 2548 to CCP §437c. [Union Bank v Superior Court (1995, 2nd Dist) 31 Cal App 4th 573, 37 Cal Rptr 2d 653]

Also, the court did not expressly discuss the wording contained in CCP §437c(n)(2), which defines when a cause of action can be found to have "no merit" for purposes of summary adjudication. Code of Civil Procedure section 437c(n)(2) states that a cause of action has no merit if either of the following exists: (1) One or more of the elements of the cause of action cannot be separately established, even if that element is separately pleaded; (2) A defendant establishes an affirmative defense to the cause of action.

This contrasts with Fed RCP 56, as interpreted by Celotex, which requires the moving party to "show" the opposing party has no evidence. Leaving aside the question of what is meant by "separately" established, the court implicitly found the legislature meant the phrase "cannot be separately established" in CCP §437c to have the same meaning as "show[s] there is no genuine issue of material fact" in Fed RCP 56. [Union Bank v Superior Court (1995, 2nd Dist) 31 Cal App 4th 573, 37 Cal Rptr 2d 653]

The court’s holding in Union Bank is narrowly framed to overrule its own prior holding in Barnes v Blue Haven Pools (1969, 2nd Dist) 1 Cal App 3d 123, 81 Cal Rptr 444, which prohibited a summary judgment motion from being granted when the moving party simply relied on the opposing party‘s factually devoid interrogatory answers.

The Union Bank court held that the Legislature intended that the burden shifting characteristics of Fed RCP 56, as interpreted by Celotex, were to be applied to California summary judgment motions when a defendant relied on a plaintiff’s factually inadequate discovery answers to seek summary judgment. Now, a moving defendant may rely on factually devoid discovery responses to shift the burden of proof pursuant to CCP §437c(o)(2). Once the burden shifts as a result of the factually devoid discovery responses, the plaintiff must set forth the specific facts which prove the existence of a triable issue of material fact. [Union Bank v Superior Court (1995, 2nd Dist) 31 Cal App 4th 573, 37 Cal Rptr 2d 653]

In so holding, the court rejected as evidence the ex post facto attempt by the sponsor of the 1992 amendment to restate the intent of the amendment by a letter inserted in the Assembly Daily Journal dated September 8, 1993. The letter stated that the amendment was not intended to lift the requirement that moving defendants disprove their opponents‘ causes of action, but rather was an attempt to allow plaintiffs to obtain judgment without the burden of negating affirmative defenses. The court found the letter to be too late and factually inconsistent with the record of legislative intent which existed at the time of the enactment of the amendment. [Union Bank v Superior Court (1995, 2nd Dist) 31 Cal App 4th 573, 37 Cal Rptr 2d 653]

Unless another court disagrees with the Union Bank analysis and publishes an opinion creating a split among the district courts, it appears there has been a significant change in the summary judgment standard now applicable in the trial courts. It now appears a moving party meets its initial burden of proof by showing the opposing party has no evidence to prove at least one element of a cause of action and no longer needs to prove the opposing party cannot prove the allegations of the cause of action. This can be achieved by submission of admissable evidence such as interrogatory answers or admissions. Where this burden is met, and the opposing party cannot produce evidence to raise a triable issue of fact, the motion will be granted where previously it would have been denied.

Still unresolved is how much evidence is required in opposition to defeat the motion. The 1993 amendments attempted to address the question by adding CCP §437c(o), which states that a party opposing a summary judgment motion cannot raise a triable issue simply by relying on the "mere allegations or denials of its pleadings . . . but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defence thereto."

Although it is not yet clear how concrete these "specific" facts must be, some guidance is contained in the statute itself and in existing case law. First, the court is precluded by CCP §437c(c) from considering the crediblity of the evidence presented. Second, the court may consider circumstantial evidence and all reasonable inferences drawn from such evidence, but may not rely, in the summary judgment context, upon inferences which are "speculative" in the sense that the court could just as easily come to the conclusion that the element was proven or not proven based on the evidence. [See James v Otis Elevator Co. (1988, CA11 Ga) 854 F2d 429]

Ultimately, the law governing summary judgment motions may come to resemble the law pertaining to motions for nonsuit, which is similar to the language of the 1993 amendments to CCP §437c. The rule is that a court may not grant a defendant’s motion for nonsuit if the plaintiff‘s evidence could support a jury verdict in the plaintiff’s favor. In making this determination, the court will not consider credibilty, will ignore conflicting evidence, and must "encourage" every "legitimate" inference which may be drawn from the evidence in plaintiff‘s favor. [Campbell v General Motors Corp. (1982) 32 Cal 3d 112, 184 Cal Rptr 891, 649 P2d 224, 35 ALR4th 1036]

However, unlike the summary judgment motion, a mere "scintilla" of evidence does not create enough of a conflict to warrant a jury’s determination and will not defeat the motion for nonsuit. [Nally v Grace Community Church (1988) 47 Cal 3d 278, 253 Cal Rptr 97, 763 P2d 948] Absent new case authority, the "scintilla" rule is still applicable to summary judgment motions and the slightest evidence can still raise a triable issue of fact sufficient to defeat the motion. Also, the traditional reluctance of the California courts to remove a case from a jury‘s consideration remains apparently undiminished and is arguably stronger in the summary judgment situation because all the plaintiff’s evidence may not have been presented.

Whether or not the standards for granting a nonsuit will be adopted or modified to fit the summary judgment motion remains to be seen and may be the next debate in the current argument over the proper role of summary adjudication in the trail courts. Federal law has long been more willing than California‘s to substitute a judge’s determination for a jury‘s deliberation.

Given the pace of the development of case law in response to the most recent amendments and the court’s traditional disfavor of the "harsh remedy" of summary judgment, whether the federal model will continue to provide guidance may depend more on further legislation than upon case precedent. The question of whether California will see an increase of summary disposition of cases may remain unsettled for some time to come.

§ 21:39 Burden of proof of opposing party

 

The party opposing a summary judgment has the burden of demonstrating that triable issues of material fact exist. Unless that burden is met, summary judgment is properly granted. [Wagner v Glendale Adventist Medical Center (1989, 2nd Dist) 216 Cal App 3d 1379, 265 Cal Rptr 412, 115 CCH LC P 56252] The opposing party is not required to file affidavits and declarations to defeat the motion unless the moving party has provided facts sufficient to establish every element necessary to sustain a judgment. [Niederer v Ferreira (1987, 2nd Dist) 189 Cal App 3d 1485, 234 Cal Rptr 779]

Ä Practice Note

A decision not to file any evidentiary material in opposition should be made only after very careful analysis. This creates a tremendous risk, because the court may be more inclined to grant a motion in the absence of any additional evidence.

§ 21:39 Burden of proof of opposing party [Revised] [Supp]

 

--p. 34. Replace the text of the section with the following:

Under the summary judgment statute, the burden of proof shifts to the party opposing the motion for summary judgment once the moving party has met his or her burden of proof. Thus, once the moving party has met his or burden of proving that the action has no merit (where the defendant is the moving party) or that there is no defense to the cause of action (where the plaintiff is the moving party), the burden shifts to the opposing party to show that a triable issue of one or more material facts exists as to the cause of action or defense. However, a party may not rely on the mere allegations or denials of that party‘s pleadings to show that a triable issue of material fact exists but, instead, must set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or defense. [CCP §437c(o)]

The opposing party is not required to file affidavits and declarations to defeat the motion unless the moving party has provided facts sufficient to establish every element necessary to sustain a judgment. [Niederer v Ferreira (1987, 2nd Dist) 189 Cal App 3d 1485, 234 Cal Rptr 779]

Ä Practice Note

A decision not to file any evidentiary material in opposition should be made only after very careful analysis. This creates a tremendous risk, because the court may be more inclined to grant a motion in the absence of any additional evidence.

§ 21:40 Construction of affidavits

The affidavits of the moving party are strictly construed, while those of the party opposing the motion are liberally construed, and doubts as to the propriety of granting the motion must be resolved in favor of the party opposing the motion. [Miller v Bechtel Corp. (1983) 33 Cal 3d 868, 191 Cal Rptr 619, 663 P2d 177; Mogil v California Physicians Corp. (1990, 4th Dist) 218 Cal App 3d 1030, 267 Cal Rptr 487]

D. STANDARDS FOR RULING BY COURT

§ 21:41 Statutory provisions

Under CCP §437c(c), a motion for summary judgment must be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In determining whether the papers show that there is no triable issue as to any material fact, the court must consider all of the evidence set forth in the papers, except that evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence. [CCP §437c(c); see Taylor v Fields (1986, 2nd Dist) 178 Cal App 3d 653, 224 Cal Rptr 186 (under CCP §437c, trial court is not limited to search for facts on particular issue, but may draw inferences regarding that issue from relevant facts set forth in affidavits)] Summary judgment, however, shall not be granted by the court based on inferences reasonably deducible from the evidence, if they are contradicted by other inferences or evidence, which raise a triable issue as to any material fact. [CCP §437c(c)]

Under CCP §437c(e), if a party is otherwise entitled to a summary judgment, summary judgment must not be denied on grounds of credibility or for want of cross-examination of witnesses furnishing affidavits or declarations in support of the summary judgment. Summary judgment, however, may be denied in the discretion of the court where the only proof of a material fact offered in support of the summary judgment is an affidavit or declaration made by an individual who was the sole witness to that fact, or where a material fact is an individual’s state of mind, or lack of state of mind, and that fact is sought to be established solely by the individual‘s affirmation thereof. [CCP §437c(e)]

E. ORDERS

21:42. Order granting motion

21:43. Order denying motion

21:44. Sanctions for affidavits presented in bad faith

§ 21:42 Order granting motion

 

Upon the grant of a motion for summary judgment on the ground that there is no triable issue of material fact, the court must, by written or oral order, specify the reasons for its determination. The order must specifically refer to the evidence proffered in support of, and if applicable in opposition to, the motion which indicates that no triable issue exists. The court must also state, by court reporter or written order, its reasons for any other determination. [CCP §437c(g)]

When a court grants full summary judgment, it enters an order which is followed by entry of the actual judgment.

Ä Caution

After a court enters an order granting summary judgment, counsel is cautioned to make certain that the actual judgment is entered, since it is the judgment, not the order granting judgment, that is appealable. [CCP §437c(l); Ten Eyck v Industrial Forklifts (1989, 2nd Dist) 216 Cal App 3d 540, 265 Cal Rptr 29; for discussion of the appealability of summary judgment, see §21:47]

When a court grants summary adjudication, it enters an order which remains an order until the conclusion of the action. When a final judgment is entered in the action, the order granting summary adjudication is incorporated into the final judgment. [See CCP §437c(j)]

Ä Practice Note

To make the court’s job easier, counsel should submit proposed orders with their papers, or bring the orders to the hearing on the motion, even where this is not required.

§ 21:42 Order granting motion [Revised] [Supp]

 

--p. 36. Replace the Practice Note at the end of the section with the following Practice Note and text:

Ä Practice Note

To make the court‘s job easier, counsel should submit proposed orders with their papers, or bring the orders to the hearing on the motion, even where this is not required. Counsel is advised to check the applicable local rules. For example, the current local rule in Alameda County requires proposed orders to be submitted by both sides with reference to all motions. [Alameda County Superior Court Rule 10.2(8)]

If a motion for summary adjudication is granted, at trial of the action, the cause or causes of action within the action, affirmative defense or defenses, claim for damages, or issue or issues of duty as to the motion which has been granted are deemed to be established and the action must proceed as to the cause or causes of action, affirmative defense or defenses, claim for damages, or issue or issues of duty remaining. In the trial of the action, the fact that a motion for summary adjudication is granted as to one or more causes of action, affirmative defenses, claims for damages, or issues of duty within the action shall not operate to bar any cause of action, affirmative defense, claim for damages, or issue of duty as to which summary adjudication was either not sought or denied. In the trial of an action, neither a party, nor a witness, nor the court may comment on the grant or denial of a motion for summary adjudication to a jury. [CCP §437c(m)]

§ 21:43 Order denying motion

 

Upon the denial of a motion for summary judgment on the ground that there is a triable issue as to one or more material facts, the court must, by written or oral order, specify one or more material facts raised by the motion as to which the court has determined there exists a triable controversy. This determination must specifically refer to the evidence proffered in support of and in opposition to the motion that indicates a triable controversy exists. [CCP §437c(g)]

Ä Practice Note

In order to deny a motion for summary judgment or summary adjudication, the trial court is only required to specify one material fact as to which there is a triable issue. Accordingly, counsel opposing the motion is advised to prepare the order in a manner that makes clear that additional triable issues might also exist. Otherwise, the trial court might later limit the issues at trial based on the erroneous assumption that there is only one material fact to be tried.

Counsel is advised to check the applicable local rules as to proposed orders. For example, under the current local rule in San Bernardino County, the moving party and opposing party must include with the initial moving and opposing papers to each such motion a proposed order grantingdenying the motion. The proposed order must state the ultimate issues permitting the granting of summary judgment of the entire action, one or more causes of action or defenses exactly as represented in the motion under San Bernardino County Superior Court Rule 515.2 and must set out the specific supporting and contravening evidence with specific reference to the particular disputed or undisputed material fact as set forth in the separate statement. [San Bernardino County Superior Court Rule 515.8]

The current local rule in Alameda County requires the opposing party to include with the initial opposing papers a proposed order denying the motion for summary judgment or summary adjudication. The proposed order must designate the disputed factual issues and set forth the specific supporting and contravening evidence, with specific reference to the numbered paragraphs of the moving and opposing party’s separate statements. Where it is contended that the motion should fail due to the moving party‘s failure to meet its burden to establish its claim or defense as a matter of law, the respect in which the moving party has thus failed must be set out in the proposed order. [Alameda County Superior Court Rule 25]

§ 21:43 Order denying motion [Revised] [Supp]

 

--p. 37. Change the Alameda County Superior Court Rule cite from Alameda County Superior Court Rule 25 to Alameda County Superior Court Rule 10.10(25).

§ 21:44 Sanctions for affidavits presented in bad faith

 

If the court determines at any time that any of the affidavits are presented in bad faith or solely for purposes of delay, the court must order the party presenting the affidavits to pay the other party the amount of the reasonable expenses which the filing of the affidavits caused the other party to incur. [CCP §437c(i)] Sanctions, however, will not be imposed under CCP § 437c(i) except on notice contained in a party’s papers, or on the court‘s own motion, and after an opportunity to be heard. Counsel should also be aware of sanctions under CCP §128.5 for bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay. Under CCP §128.5, "actions or tactics" include the making or opposing of motions. [For discussion of sanctions under CCP §128.5, see PROCEDURE: Sanctions Under CCP §128.5; Vexatious Litigants (Ch 15)]

§ 21:44 Sanctions for affidavits presented in bad faith [Revised] [Supp]

 

--p. 37. Replace the text of the section with the following:

If the court determines at any time that any of the affidavits are presented in bad faith or solely for purposes of delay, the court must order the party presenting the affidavits to pay the other party the amount of the reasonable expenses which the filing of the affidavits caused the other party to incur. [CCP §437c(i)] Sanctions, however, will not be imposed under CCP §437c(i) except on notice contained in a party’s papers, or on the court‘s own motion, and after an opportunity to be heard. Counsel should also be aware of sanctions under CCP §128.5 for bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay and that arise from a complaint filed, or a proceeding initiated, on or before December 31, 1994. Under CCP §128.5, "actions or tactics" include the making or opposing of motions. Counsel should also be aware of the possibility of sanctions under CCP §128.7. That statute authorizes a trial court to impose sanctions for certain conduct relating to the signing, filing, submitting, or the later advocating of a pleading, petition, written notice of motion, or other similar paper, where the pleading, petition, written notice of motion, or other similar paper is filed on or after January 1, 1995. [For discussion of sanctions under CCP §128.5, see PROCEDURE: Sanctions Under CCP §§128.5, 128.7; Vexatious Litigants (Ch 15)]

F. CHALLENGING RULING IN TRIAL COURT

21:45. When motion is granted

21:46. When motion is denied

§ 21:45 When motion is granted

A grant of summary judgment may be challenged in the trial court by way of a motion for reconsideration under CCP §1008(a) before the judgment is entered [for discussion of motions for reconsideration, see §21:46], and by a motion for a new trial under CCP §657, or a motion for relief under CCP §473 because of mistake, inadvertence, surprise, or excusable neglect after the judgment is entered. [See CEB, Civil Procedure Before Trial 3d, Procedures After Summary Judgment §§47:2-47:5]

§ 21:46 When motion is denied

Following the denial of a motion for summary judgment or summary adjudication, a party may move in the trial court for reconsideration of the motion under CCP §1008(a) or renewal of the motion under CCP §1008(b). [See Graham v Hansen (1982, 3rd Dist) 128 Cal App 3d 965, 180 Cal Rptr 604 (party’s second motion for summary judgment was motion for renewal); CEB Civil Procedure Before Trial 3d, Procedures After Summary Judgment §§47:14, 47:15] Motions for reconsideration and motions for renewal must be based upon an alleged different state of facts. [CCP §1008(a) and (b); see Blue Mountain Dev. Co. v Carville (1982, 4th Dist) 132 Cal App 3d 1005, 183 Cal Rptr 594 (party seeking reconsideration must provide not only new evidence but also satisfactory explanation for failure to produce that evidence at an earlier time)] A motion for reconsideration must be made within 10 days of knowledge of the order. [CCP §1008(a)] The 10-day time limit of CCP §1008(a) is not applicable to motions for renewal under CCP §1008(b). [CCP §1008(b); for detailed discussion of motions for reconsideration and renewal under CCP §1008, see PROCEDURE: Motion Practice (Ch 14)]

Ä Practice Note

Motions for reconsideration under CCP §1008 will only lie before the judgment is entered. [See Hartford Accident & Indemnity Co. v Sequoia Ins. Co. (1989, 5th Dist) 211 Cal App 3d 1285, 260 Cal Rptr 190] After a judgment is entered, the only way to seek review in the trial court is by a post-judgment motion such as for a new trial under CCP §657 or to vacate under CCP §473. [Passavanti v Williams (1990, 4th Dist) 225 Cal App 3d 1602, 275 Cal Rptr 887; for detailed discussion of motions for reconsideration and renewal under CCP §1008, see PROCEDURE: Motion Practice (Ch 14)] A motion for a new trial under CCP §657 is available even though there was no trial. [Scott v Farrar (1983, 2nd Dist) 139 Cal App 3d 462, 188 Cal Rptr 823; for detailed discussion of a motion for new trial under CCP §657, and a motion to vacate under CCP §473, see PROCEDURE: Attacking the Judgment (Ch 29)]

Ä Caution

Counsel should not view a challenge of the ruling in the trial court as a replacement for appellate review. When challenging the ruling in the trial court, counsel should remain aware of time limitations involved in the appellate process. [For detailed discussion of the appellate process, see PROCEDURE: Appeal From Municipal and Justice Courts (Ch 34) and Appeal From Superior Court (Ch 35)]

VI. APPELLATE REVIEW OF COURT‘S RULING

A. APPEAL OF SUMMARY JUDGMENT

21:47. Appealability

21:48. Action involving multiple parties

21:49. Scope of review on appeal

§ 21:47 Appealability

A summary judgment entered under CCP §437c is an appealable judgment as in other cases. [CCP §437c(l)] An order granting summary judgment, however, is not an appealable order. [Ten Eyck v Industrial Forklifts (1989, 2nd Dist) 216 Cal App 3d 540, 265 Cal Rptr 29] Only a judgment entered following such an order is appealable. [Rogness v English Moss Joint Venturers (1987, 1st Dist) 194 Cal App 3d 190, 239 Cal Rptr 387; but see Lindgren v Baker Engineering Corp. (1988, 4th Dist) 197 Cal App 3d 1351, 243 Cal Rptr 476 (court construed order to incorporate judgment in interest of justice and to avoid delay)]

§ 21:48 Action involving multiple parties

Under the final judgment rule, an appeal lies only from a final judgment. [Kinoshita v Horio (1986, 1st Dist) 186 Cal App 3d 959, 231 Cal Rptr 241; CCP §904.1(a); Witkin, 9 Cal. Proc. 3d, Appeal, §§43, 44] Normally an aggrieved party is entitled to one appeal from the final judgment in an action. [United Pacific Ins. Co. v Hanover Ins. Co. (1990, 3rd Dist) 217 Cal App 3d 925, 266 Cal Rptr 231] Under CCP §437c(j), except where a separate judgment may properly be awarded in the action, no final judgment can be entered on a motion for summary judgment prior to the termination of the action. [CCP §437c(j)] A practical exception is recognized where there are multiple parties and the order granting summary judgment disposes of all issues involving the appealing party. [See American Nat. Bank v Stanfill (1988, 5th Dist) 205 Cal App 3d 1089, 252 Cal Rptr 861]

§ 21:49 Scope of review on appeal

In reviewing the granting of a summary judgment the appellate court must make an independent determination of the construction and effect of the papers submitted to the trial court. [Walter E. Heller Western, Inc. v Tecrim Corp. (1987, 2nd Dist) 196 Cal App 3d 149, 241 Cal Rptr 677; see also Saldana v Globe-Weis Systems Co. (1991, 5th Dist) 233 Cal App 3d 1505, 285 Cal Rptr 385 (adopting independent review standard and rejecting standard of abuse of discretion applied by cases cited therein)] In reviewing the granting of summary judgment, an appellate court applies the same three-step analysis used by the trial court. [AARTS Productions, Inc. v Crocker National Bank (1986, 6th Dist) 179 Cal App 3d 1061, 225 Cal Rptr 203] First, the court identifies the issues framed by the pleadings. Second, the court determines whether the moving party has established facts sufficient to negate the opponent’s claim. Third, if the moving party has met its burden of establishing facts sufficient to negate the opponent‘s claim, the court examines whether the opposing party’s showing discloses that triable issues of material fact exist. [Biljac Associates v First Interstate Bank (1990, 1st Dist) 218 Cal App 3d 1410, 267 Cal Rptr 819] The appellate court must strictly construe the moving party‘s papers and liberally construe those of its opponent, and any doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion. [Walter E. Heller Western, Inc. v Tecrim Corp. (1987, 2nd Dist) 196 Cal App 3d 149, 241 Cal Rptr 677]

B. REVIEW BY WRIT

21:50. Overview

21:51. Time limits for filing petition for writ

§ 21:50 Overview

Upon entry of any order pursuant to CCP §437c, except the entry of summary judgment, a party may, within 20 days after service on him or her of a written notice of entry of the order, petition an appropriate reviewing court for a peremptory writ. [CCP §437c(l)] Accordingly, an order denying a motion for summary judgment and orders granting or denying motions for summary adjudication may be challenged by writ. [See American Internat. Underwriters Agency Corp. v Superior Court (1989, 5th Dist) 208 Cal App 3d 1357, 256 Cal Rptr 730 (writ of mandate is appropriate method by which party can request that appellate court direct trial court to vacate order denying motion for summary judgment and enter judgment granting motion); CEB, Civil Procedure Before Trial 3d, Procedures After Summary Judgment Motions §47:16; for detailed discussion of peremptory writs, see PROCEDURE: Extraordinary Writs (Ch 31)]

Ä Caution

Although CCP §437c(l) authorizes a party to petition for peremptory writ upon the denial of a motion for summary judgment, such applications are not routinely granted even if the trial court erred. [See Continental Insurance Co. v Superior Court (1985, 1st Dist) 165 Cal App 3d 1069, 212 Cal Rptr 140] Rather, the granting of a peremptory writ is discretionary. [For detailed discussion of peremptory writs, see PROCEDURE: Extraordinary Writs (Ch 31)]

§ 21:51 Time limits for filing petition for writ

 

If the notice is served by mail, the initial period within which to file the petition will be increased by 5 days if the place of address is outside the State of California but within the United States, and by 20 days if the place of address is outside the United States. [CCP §437c(l)] The superior court may, for good cause and prior to the expiration of the initial period, extend the time for one additional period not to exceed 10 days. [CCP §437c(l); for detailed discussion of peremptory writs, see PROCEDURE: Extraordinary Writs (Ch 31)]

Ä Practice Note

Service of a copy of a file-stamped order has been held to constitute written notice of entry of the order under CCP §437c(l). [See Eldridge v Superior Court (1989, 5th Dist) 208 Cal App 3d 1350, 256 Cal Rptr 724 (clerk’s mailing of file-stamped copy of order denying motion for summary adjudication constituted service of written notice of entry of the order under CCP §437c(l); compare Schmidt v Superior Court (1989, 5th Dist) 207 Cal App 3d 56, 254 Cal Rptr 827 (minute order constituted written notice of entry of order); Witkin, 6 Cal. Proc. 3d, Proceedings Without Trial, §305]

§ 21:51 Time limits for filing petition for writ [Revised] [Supp]

 

--p. 41. Replace the first paragraph of the section with the following:

If the notice is served by mail, the initial period within which to file the petition will be increased by 5 days if the place of address is within the State of California, 10 days if the place of address is outside the State of California but within the United States, and by 20 days if the place of address is outside the United States. If the notice is served by facsimile transmission, Express Mail, or another method of delivery providing for overnight delivery, the initial period within which to file the petition is increased by two court days. [CCP §437c(l)] The superior court may, for good cause and prior to the expiration of the initial period, extend the time for one additional period not to exceed 10 days. [CCP §437c(l); for detailed discussion of peremptory writs, see PROCEDURE: Extraordinary Writs (Ch 31)]

VII. PROCEDURAL CHECKLISTS

21:52. Matters to be considered by moving party

21:53. Matters to be considered by opposing party

§ 21:52 Matters to be considered by moving party

 

• Moving papers

- Notice of motion [CCP §437c(a)]

- Supporting papers [CCP §437c(b)]

-- Affidavits

-- Declarations

-- Admissions

-- Answers to interrogatories

-- Matters of which judicial notice must or may be taken

-- Separate statement of undisputed material facts

• Time for making motion [CCP §437c(a)]

- At any time after 60 days have elapsed since general appearance in action or proceeding of each party against whom motion is directed

- At such earlier time after general appearance as court, with or without notice, and on good cause, may direct

• Service of notice of motion and supporting papers [CCP § 437c(a)]

- At least 28 days before time appointed for hearing

- If notice is served by mail, 28-day notice period must be increased

-- By 5 days if place of address is within California

-- By 10 days if place of address is outside of California, but in United States

-- By 20 days if place of address is outside of United States

• Time for hearing [CCP §437c(a)]

- No later than 30 days before date of trial unless court for good cause orders otherwise

• Reply to opposition [CCP §437c(b)]

- Must be served and filed not less than 5 days preceding noticed or continued date of hearing, unless court for good cause orders otherwise

• Review of any order except entry of summary judgment by petitioning court for peremptory writ within 20 days after service of written notice of entry of order [CCP §437c(l)]

- If notice is served by mail, initial 20-day period must be increased

-- By 5 days if place of address is within California

-- By 10 days if place of address is outside California but within United States

-- By 20 days if place of address is outside United States

- Superior court may, for good cause and prior to expiration of initial 20-day period, extend time for one additional period not to exceed 10 days

§ 21:52 Matters to be considered by moving party [Revised] [Supp]

 

--pp. 42, 43. Replace the Service of notice of motion and supporting papers [CCP §437c(a)] and Review of any order except entry of summary judgment by petitioning court for peremptory writ within 20 days after service of written notice of entry of order [CCP §437c(l)] portions of the checklist with the following:

Service of notice of motion and supporting papers [CCP §437c(a)]

At least 28 days before time appointed for hearing

If notice is served by mail, 28-day notice period must be increased

By 5 days if place of address is within California

By 10 days if place of address is outside of California, but in United States

By 20 days if place of address is outside of United States

If notice is served by facsimile transmission, Express Mail, or other overnight delivery method, 28-day notice period is increased by two court days

Review of any order except entry of summary judgment by petitioning court for peremptory writ within 20 days after service of written notice of entry of order [CCP §437c(l)]

If notice is served by mail, initial 20-day period must be increased

By 5 days if place of address is within California

By 10 days if place of address is outside California but within United States

By 20 days if place of address is outside United States

If notice is served by facsimile transmission, Express Mail, or other overnight delivery method, initial 20-day period is increased by two court days

Superior court may, for good cause and prior to expiration of initial 20-day period, extend time for one additional period not to exceed 10 days

§ 21:53 Matters to be considered by opposing party

 

• Opposition papers [CCP §437c(b)]

- Affidavits

- Declarations

- Admissions

- Answers to interrogatories

- Matters of which judicial notice must or may be taken

- Separate statement of undisputed material facts

• Time for service and filing of opposition [CCP §437c(b)]

- Not less than 14 days preceding the noticed or continued date of hearing, unless court for good cause orders otherwise

• Continuance [CCP §437c(h)]

- For discovery if it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication or both that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented

• Review of summary judgment [CCP §437c(l)]

- By appeal

• Review of order granting summary adjudication by petitioning court for peremptory writ within 20 days after service of written notice of entry of order [CCP §437c(l)]

- If notice is served by mail, initial 20-day period must be increased

-- By 5 days if place of address is within California

-- By 10 days if place of address is outside California but within United States

-- By 20 days if place of address is outside United States

- Superior court may, for good cause and prior to expiration of initial 20-day period, extend time for one additional period not to exceed 10 days

§ 21:53 Matters to be considered by opposing party [Revised] [Supp]

 

--p. 43. Replace the Review of order granting summary adjudication by petitioning court for peremptory writ within 20 days after service of written notice of entry of order [CCP §437c(l)] portion of the checklist with the following:

Review of order granting summary adjudication by petitioning court for peremptory writ within 20 days after service of written notice of entry of order [CCP §437c(l)]

If notice is served by mail, initial 20-day period must be increased

By 5 days if place of address is within California

By 10 days if place of address is outside California but within United States

By 20 days if place of address is outside United States

If notice is served by facsimile transmission, Express Mail, or other overnight delivery method, initial 20-day period is increased by two court days

Superior court may, for good cause and prior to expiration of initial 20-day period, extend time for one additional period not to exceed 10 days

VIII. FORMS

21:54. Notice of motion for summary judgment [CCP §437c(a)]

21:55. Notice of motion for summary adjudication [CCP § 437c(a) and (f)]

21:56. Separate statement of undisputed material facts in support of motion for summary judgment [CCP §437c(b)]

21:57. Separate statement in opposition to motion for summary judgment [CCP §437c(b)]

21:58. Declaration in support of or in opposition to summary judgment [CCP §437c(b) and (d)]

21:59. Proposed order granting motion for summary judgment [CCP §437c(g)]

21:60. Proposed order granting motion for summary adjudication [CCP §437c(g)]

21:61. Proposed order denying motion for summary judgment [CCP §437c(g)]

21:62. Proposed order denying motion for summary adjudication [CCP §437c(g)]

21:63. Summary Judgment [CCP §437c]

§ 21:54 Notice of motion for summary judgment [CCP § 437c(a)]

__________ [Name, office
address, telephone number
of attorney, and
state bar number if
required by local rules]
Attorney for __________ [moving party]


SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF __________


|Case No.
|NOTICE OF MOTION FOR
__________ [Name], |SUMMARY JUDGMENT
Plaintiff, |__________ [POINTS AND
|AUTHORITIES;
vs. |DECLARATION]
|[CCP section 437c(a)]
__________ [Name], |Date: __________
Defendant. |Time: __________
|Location: __________
|Trial date: __________
____________________________________________________________


To all parties and their attorneys of record:

PLEASE TAKE NOTICE that on __________ [date], at __________
[time], or as soon thereafter as the matter can be heard in
__________ [specify court including department number, if
applicable], at __________ [location of court], __________ [status
of moving party], __________ [name of moving party], will and does
move this Court for summary judgment in favor of __________ [status
of moving party], and against __________ [status of opposing
party], __________ [name of opposing party]. This motion is made
pursuant to Code of Civil Procedure section 437c, on the grounds
that __________ [there is no defense to the action or the action
has no merit], there is no triable issue as to any material fact,
and that __________ [status of moving party], __________ [name of
moving party], is entitled to a judgment as a matter of law.

This motion will be based on __________ [specify papers on
which motion is based, for example: the memorandum of points and
authorities filed with this motion, the Separate Statement of
Undisputed Material Facts of __________ (status of moving party),
and the declarations of __________ (names of declarants), filed
with this motion].

Dated __________.



______________________________
[Signature]
Attorney for __________


Ä Notes

Grounds for issuance: Under CRC 311(a) the grounds for issuance of the order being sought must be stated in the opening paragraph of the notice of motion.

Memorandum of points and authorities: A notice of motion for summary judgment must be accompanied by a memorandum of points and authorities. [CRC 313(a)] The memorandum of points and authorities must contain a statement of facts, a concise statement of the law, evidence, and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced. [CRC 313(b)] A memorandum of points and authorities that exceeds 10 pages must include a table of contents and table of authorities. A memorandum of points and authorities that exceeds 15 pages must also include an opening summary of argument. [CRC 313(d)]

§ 21:55 Notice of motion for summary adjudication [CCP §437c(a) and (f)]

__________ [Name, office
address, telephone number
of attorney, and
state bar number if
required by local rules]
Attorney for __________ [moving party]


SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF __________

|Case No.
|NOTICE OF MOTION FOR
__________ [Name], |SUMMARY ADJUDICATION
Plaintiff, |__________ [POINTS AND
|AUTHORITIES;
vs. |DECLARATION]
|[CCP section 437c(a) and (f)]
__________ [Name], |Date: __________
Defendant. |Time: __________
|Location: __________
|Trial date: __________
_______________________________________________________________


To all parties and their attorneys of record:

PLEASE TAKE NOTICE that on __________ [date], at __________
[time], or as soon thereafter as the matter can be heard in
__________ [specify court including department number, if
applicable], at __________ [location of court], __________
[status of moving party], __________ [name of moving party],
will and does move this Court for summary adjudication in favor
of __________ [status of moving party], and against __________
[status of opposing party], __________ [name of opposing party],
as to __________ [set forth cause or causes of action,
affirmative defense, claim for damages under Civil Code section
3294, or issue of duty owed to plaintiff by defendant, for
example: plaintiff‘s cause of action for breach of contract as
set forth in plaintiff’s complaint]. This motion is made
pursuant to Code of Civil Procedure section 437c(f), on the
grounds that __________ [the cause of action has no merit or as
the case may be].

This motion will be based on __________ [specify papers on
which motion is based, for example: the memorandum of points and
authorities filed with this motion, the Separate Statement of
Undisputed Material Facts of __________ (status of moving
party), and the declarations of __________ (names of
declarants), filed with this motion].

Dated __________.


______________________________
[Signature]
Attorney for __________

Ä Notes

Grounds for issuance: Under CRC 311(a) the grounds for issuance of the order being sought must be stated in the opening paragraph of the notice of motion.

Memorandum of points and authorities: A notice of motion for summary judgment must be accompanied by a memorandum of points and authorities. [CRC 313(a)] The memorandum of points and authorities must contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced. [CRC 313(b)] A memorandum of points and authorities that exceeds 10 pages must include a table of contents and table of authorities. A memorandum of points and authorities that exceeds 15 pages must also include an opening summary of argument. [CRC 313(d)]

Form and contents: Under CCP §437c(f), a motion for summary adjudication may be made by itself or as an alternative to summary judgment. Counsel, however, is advised to check the applicable local rules. For example, the current local rule in San Bernardino County provides that motions for summary judgment of the entire action andor summary adjudication of one or more causes of action, defenses, claim of damages or duty must be prepared as a single motion but with a notation in the title and caption that it is in the "alternative." [San Bernardino County Superior Court Rule 515.1]

§ 21:56 Separate statement of undisputed material facts in support of motion for summary judgment [CCP §437c(b)]

 

__________ [Name, office
address, telephone number
of attorney, and
state bar number if
required by local rules]
Attorney for __________ [moving party]


SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF __________

|Case No. ___
|__________ [DEFENDANT‘S]
|SEPARATE
__________ [Name], |STATEMENT OF
Plaintiff, |UNDISPUTED MATERIAL FACT
|[CCP Section 437c(b)]
vs. |Date: __________
|Time: __________
__________ [Name], |Location: __________
Defendant. |Trial date: __________
|
_______________________________________________________________


__________ [Name], defendant, submits the following
separate of undisputed material facts with reference to
supporting evidence in support of __________ [his or her or its]
motion for summary judgment pursuant to Code of Civil Procedure
section 437c(b).

[If the motion addresses more than one cause of action or
affirmative defense, identify each cause of action or
affirmative defense and categorize the undisputed material facts
under appropriate headings, for example]:

1. __________ [Name], defendant, is an independent
contractor.


UNDISPUTED MATERIAL FACT SUPPORTING EVIDENCE

__________ [Set forth __________ [Set forth references
plainly and concisely all to evidence supporting the moving
material facts which the party’s contention that the facts
moving party contends are are undisputed, for example]:
undisputed, for example]:

1. By the terms of their Independent Contractor Agreement,
agreement, __________ [name] Paragraph 7.01, Page 12, Exhibit
defendant, and __________ A.
[name] explicityly contracted
for __________ [name], defend-
ant to be an independent con-
tractor.


2. [Identify additional causes of action or affirmative
defenses and categorize relevant undisputed material facts under
appropriate headings.]

Dated __________.



______________________________
[Signature]
Attorney for __________.

§ 21:56 Separate statement of undisputed material facts in support of motion for summary judgment [CCP §437c(b)] [Revised] [Supp]

 

--pp. 49, 50. Move the numbered line "1. ___ [Name], defendant, is an independent contractor." (which is at the end of the form immediately above the notes) to the first page of the form immediately below the bracketed instructional paragraph beginning with "[If the motion addresses more than one cause of action . . ."

§ 21:57 Separate statement in opposition to motion for summary judgment [CCP §437c(b)]

__________ [Name, office
address, telephone number
of attorney, and
state bar number if
required by local rules]
Attorney for __________ [moving party]


SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF __________


|Case No. ___
|__________ [PLAINTIFF‘S]
__________ [Name], |SEPARATE STATEMENT IN
Plaintiff, |OPPOSITION TO DEFENDANT’S
|MOTION FOR SUMMARY JUDGMENT
|[CCP Section 437c(b)]
vs. |Date: __________
|Time: __________
|Location: __________
__________ [Name], |Trial date: __________
Defendant. |
_______________________________________________________________


__________ [Name], plaintiff submits the following separate
statement of undisputed material facts in opposition to
defendant‘s motion for summary judgment pursuant to Code of
Civil Procedure section 437c(b).


__________ [Set forth all __________ [Indicate whether the
material facts contended by opposing party agrees or disagrees
the moving party to undis- that the facts are undisputed. A
puted, along with reference fact contended by the opposing
to supporting evidence cited party to be disputed must be
by moving party, for followed by a reference to the
example]: evidence supporting the contention
that the fact is disputed, for
example]:

1. By the terms of their Disputed. The Independent
agreement, __________ [name] Contractor Agreement has expired
defendant, and __________ and there is no evidence that
[name] explicitly contracted it has been extended. After the
for __________ [name], expiration of the Contractor
defendant, to be Independent Agreement, defendant
an independent contractor. continued to practice in the
__________ [medical office or as

case may be] located at [address],
as an employee of __________
[name].


Independent Contractor Agreement,
Paragraph 2.01, Page 1, Exhibit A.

__________ [Set forth __________ [Set forth references
plainly and concisely any to evidence supporting opposing
other material facts which party’s contention that facts are
the opposing party contends disputed.]
are disputed.]

Dated __________.



______________________________
[Signature]
Attorney for __________.

§ 21:58 Declaration in support of or in opposition to summary judgment [CCP §437c(b) and (d)]

__________ [Name, office
address, telephone number
of attorney, and
state bar number if
required by local rules]
Attorney for __________ [moving party]


SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF __________

|Case No.
|DECLARATION OF __________ [name]
|IN __________ [SUPPORT OF or
__________ [Name], |OPPOSITION TO] __________
Plaintiff, |__________ [PLAINTIFF‘S or
|DEFENDANT’S]
vs. |MOTION FOR
|SUMMARY JUDGMENT
__________ [Name], |[CCP section 437c(b) and (d)]
Defendant. |Date: __________
|Time: __________
|Location: __________
|Trial date: __________
____________________________________________________________


__________ [Name], declares:

1. __________ [Identify declarant, for example: I am the
defendant in this action.]

2. __________ [Indicate that the declarant has personal
knowledge of the facts set forth in the declaration and that the
declarant is competent to testify to such matters if necessary,
for example: I have personal knowledge of the facts set forth
below and, if necessary, I can competently testify to such facts
as a sworn witness.]

3. __________ [Set forth evidentiary facts in support of
or in opposition to the motion for summary judgment.]

I declare under penalty of perjury under the laws of the
State of California that the foregoing is true and correct.

Dated __________.



______________________________
[Signature of declarant]

Ä Notes

Authority: Affidavits are governed by CCP §§2009 et seq. Declarations are governed by CCP §2015.5. [For discussion of affidavits and declarations, see PROCEDURE Affidavits, Declarations, and Verification of Pleadings (Ch 11)]

Caption: Under CRC 315(a), the caption of a declaration or an affidavit must state the name of the declarant or affiant and must specifically identify the motion or other proceeding which it supports or opposes.

Personal knowledge and competency: Affidavits or declarations supporting or opposing a motion for summary judgment or summary adjudication must be made on personal knowledge, must set forth admissible evidence, and must show affirmatively that the affiant is competent to testify to the matters stated in the affidavit or declaration. [CCP §437c(d), Ev C §702; Zuckerman v Pacific Savings Bank (1986, 2nd Dist) 187 Cal App 3d 1394, 232 Cal Rptr 458 (personal knowledge and competency must be shown in the supporting and opposing affidavits and declarations)]

Evidentiary facts: Affidavits or declarations supporting or opposing a motion for summary judgment must contain evidentiary rather than ultimate facts or conclusions. [See Sheppard v Morgan Keegan & Co. (1990, 1st Dist) 218 Cal App 3d 61, 266 Cal Rptr 784, 116 CCH LC P 56353; Zuckerman v Pacific Savings Bank (1986, 2nd Dist) 187 Cal App 3d 1394, 232 Cal Rptr 458; Witkin, 6 Cal. Proc. 3d, Proceedings Without Trial, §288]

§ 21:59 Proposed order granting motion for summary judgment [CCP §437c(g)]

__________ [Name, office
address, telephone number
of attorney, and
state bar number if
required by local rules]
Attorney for __________ [moving party]


SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF __________


__________ [Name], |Case No.
Plaintiff, |PROPOSED ORDER
|GRANTING MOTION
vs. |FOR SUMMARY JUDGMENT
|[CCP section 437c(g)]
__________ [Name], |Date: __________
Defendant. |Time: __________
|Location: __________
|Trial date: __________
____________________________________________________________


The motion of __________ [status of moving party],
__________ [name of moving party], for summary judgment came on
for hearing before me on __________ [date], __________ [name of
attorney], appearing for __________ [specify party], and
__________ [name of attorney], appearing for __________ [specify
party].

After full consideration of the evidence submitted by the
parties, it appears and the court finds that there is no triable
issue of any material fact and that __________ [specify party]
is entitled to judgment as a matter of law for the reasons
stated below:

1. __________ [Set forth reasons for determination with
specific reference to the evidence proffered in support of, and
if applicable, in opposition to, the motion which indicates that
no triable issue exists.]

IT IS ORDERED that __________ [defendant‘s or as the case
may be] motion for summary judgment is granted and that judgment
will be entered in favor of __________ and against __________.

Dated __________.



______________________________
[Signature of Judge]
Judge of __________ Court

Ä Notes

Authority: Upon the grant of a motion for summary judgment on the ground that there is no triable issue of material fact, the court must, by written or oral order, specify the reasons for its determination. The order must specifically refer to the evidence proffered in support of, and if applicable in opposition to, the motion which indicates that no triable issue exists. The court must also state, by court reporter or written order, its reasons for any other determination. [CCP § 437c(g); for examples of local rules regarding proposed orders, see §21:43]

§ 21:60 Proposed order granting motion for summary adjudication [CCP §437c(g)]

__________ [Name, office
address, telephone number
of attorney, and
state bar number if
required by local rules]
Attorney for __________ [moving party]


SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF __________


__________ [Name], |Case No.
Plaintiff, |PROPOSED ORDER
|GRANTING MOTION
vs. |FOR SUMMARY ADJUDICATION
|[CCP section 437c(g)]
__________ [Name], |Date: __________
Defendant. |Time: __________
|Location: __________
|Trial date: __________
____________________________________________________________


The motion of __________ [status of moving party],
__________ [name of moving party], for summary adjudication of
__________ [specify cause of action, affirmative defense, issue
of duty, or issue of damages under CC section 3294] came on for
hearing before me on __________ [date], __________ [name of
attorney], appearing for __________ [specify party], and
__________ [name of attorney], appearing for __________ [specify
party].

After full consideration of the evidence submitted by the
parties, it appears and the court finds that there is no triable
issue of any material fact and that __________ [specify party]
is entitled to summary adjudication as to __________ [specify
cause of action, affirmative defense, issue of duty, or issue of
damages under CC section 3294] for the reasons stated below:

1. __________ [Set forth reasons for determination with
specific reference to the evidence proffered in support of, and
if applicable, in opposition to, the motion which indicates that
no triable issue exists.]

IT IS ORDERED that __________ [defendant’s or as the case
may be] motion for summary adjudication is granted and that
judgment will be entered in favor of __________ and against
__________.

Dated __________.



______________________________
[Signature of Judge]
Judge of __________ Court

Ä Notes

Authority: Upon the grant of a motion for summary judgment on the ground that there is no triable issue of material fact, the court must, by written or oral order, specify the reasons for its determination. The order must specifically refer to the evidence proffered in support of, and if applicable in opposition to, the motion which indicates that no triable issue exists. The court must also state, by court reporter or written order, its reasons for any other determination. [CCP § 437c(g); for examples of local rules regarding proposed orders, see §21:43] Under CCP §437c(f), a motion for summary adjudication proceeds in all procedural respects as a motion for summary judgment.

§ 21:61 Proposed order denying motion for summary judgment [CCP §437c(g)]

__________ [Name, office
address, telephone number
of attorney, and
state bar number if
required by local rules]
Attorney for __________


SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF __________[court
county]
__________ [plaintiff name], |Case No.
Plaintiff, |PROPOSED ORDER
|DENYING MOTION
vs. |FOR SUMMARY JUDGMENT
|[CCP section 437c(g)]
__________ [defendant name], |Date: __________
Defendant. |Time: __________
|Location: __________
|Trial date:
__________
____________________________________________________________


The motion of __________ [status of moving party],
__________ [moving party name], for summary judgment came on
for hearing before me on __________ [hearing date], __________
[attorney name], appearing for __________ [specify party
name], and __________ [specified party attorney name],
appearing for __________ [specify party name].

After full consideration of the evidence submitted by the
parties, it appears and the court determines that a triable
controversy exists as to the following __________ [material
fact or facts]:

1. __________ [Set forth one or more material facts
raised by the motion as to which the court has determined
there exists a triable controversy with specific reference to
the evidence proffered in support of or in opposition to the
motion which indicates that a triable controversy exists.]

IT IS ORDERED that __________ [defendant‘s name or as the case
may be] motion for summary judgment is denied.

Dated __________.



______________________________
[Signature of Judge]
Judge of __________[court
type] Court

Ä Notes

Authority: Upon the denial of a motion for summary judgment on the ground that there is a triable issue as to one or more material facts, the court must, by written or oral order, specify one or more material facts raised by the motion as to which the court has determined there exists a triable controversy. This determination must specifically refer to the evidence proffered in support of and in opposition to the motion indicating that a triable controversy exists. [CCP § 437c(g); for examples of local rules regarding proposed orders, see §21:43]

§ 21:62 Proposed order denying motion for summary adjudication [CCP §437c(g)]

__________ [Name, office
address, telephone number
of attorney, and
state bar number if
required by local rules]
Attorney for __________


SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF __________

__________ [Name], |Case No.
Plaintiff, |PROPOSED ORDER
|DENYING MOTION
vs. |FOR SUMMARY ADJUDICATION
|[CCP section 437c(g)]
__________ [Name], |Date: __________
Defendant. |Time: __________
|Location: __________
|Trial date: __________
____________________________________________________________


The motion of __________ [status of moving party],
__________ [name of moving party], for summary adjudication of
__________ [specify cause of action, affirmative defense, issue
of duty, or issue of damages under CC section 3294] came on for
hearing before me on __________ [date], __________ [name of
attorney], appearing for __________ [specify party], and
__________ [name of attorney], appearing for __________ [specify
party].

After full consideration of the evidence submitted by the
parties, it appears and the court determines that with respect
to __________ [specify cause of action, affirmative defense,
issue of duty, or issue of damages under CC section 3294] a
triable controversy exists as to the following __________
[material fact or facts]:

1. __________ [Set forth one or more material facts raised
by the motion as to which the court has determined there exists
a triable controversy with specific reference to the evidence
proffered in support of or in opposition to the motion which
indicates that a triable controversy exists.]

IT IS ORDERED that __________ [Defendant’s or as the case
may be] motion for summary adjudication as to __________
[specify cause of action, affirmative defense, issue of duty, or
issue of damages under CC section 3294] is denied.

Dated __________.



______________________________
[Signature of Judge]
Judge of __________ Court

Ä Notes

Authority: Upon the denial of a motion for summary judgment, on the ground that there is a triable issue as to one or more material facts, the court must, by written or oral order, specify one or more material facts raised by the motion as to which the court has determined there exists a triable controversy. This determination must specifically refer to the evidence proffered in support of and in opposition to the motion that indicates that a triable controversy exists. [CCP § 437c(g); for examples of local rules regarding proposed orders, see §21:43] Under CCP §437c(f), a motion for summary adjudication proceeds in all procedural respects as a motion for summary judgment.

§ 21:63 Summary Judgment [CCP §437c]

__________ [Name, office
address, telephone number
of attorney, and
state bar number if
required by local rules]
Attorney for __________ [moving party]


SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF __________

__________ [Name], |Case No.
Plaintiff, |JUDGMENT BY COURT
|UNDER CCP section 437c
vs. |[CCP section 437c]
|Date: __________
__________ [Name], |Time: __________
Defendant. |Location: __________
|Trial date: __________
___________________________________________________________


In accordance with the order granted by this Court on
__________ [date],

IT IS ORDERED, ADJUDGED, AND DECREED that __________ [set
forth judgment, for example: plaintiff recover from defendant in
the amount of $__________].

Dated __________.



______________________________
[Signature of Judge]
Judge of __________ Court

Ä Notes

Authority: Except where a separate judgment may properly be awarded in the action, no final judgment can be entered on a motion for summary judgment prior to the termination of the action. The final judgment, however, must, in addition to any matters determined in the action, award judgment as established by the summary proceedings provided for by statute. [CCP §437c(j)]

BIBLIOGRAPHY

Bancroft-Whitney

Witkin

Witkin, 1 Cal. Evidence, 3d, §§558 et seq.

Witkin, 6 Cal. Proc. 3d, Proceedings Without Trial, §§274-314.

CEB

Civil Procedure Before Trial 3d, Deciding to Seek Summary Judgment (Ch 43). California Continuing Education of the Bar.

Civil Procedure Before Trial 3d, Motions for Summary Judgment (Ch 44). California Continuing Education of the Bar.

Civil Procedure Before Trial 3d, Opposing Summary Judgment (Ch 45). California Continuing Education of the Bar.

Civil Procedure Before Trial 3d, Summary Judgment Hearings and Rulings (Ch 46). California Continuing Education of the Bar.

Civil Procedure Before Trial 3d, Procedures After Summary Judgment (Ch 47). California Continuing Education of the Bar.

The Rutter Group

California Practice Guide--Civil Procedure Before Trial (1990) Summary Judgment and Summary Adjudication of Issues (Ch 10). The Rutter Group.

Annotations

Sufficiency of evidence to support grant of summary judgment in will probate or contest proceedings, 53 ALR4th 561.

Admissibility of oral testimony at state summary judgment hearing, 53 ALR4th 527.

Reviewability of order denying motion for summary judgment, 15 ALR3d 899.

Proceeding for summary judgment as affected by presentation of counterclaim, 8 ALR3d 1361.

BIBLIOGRAPHY [Supp]

Legal Periodicals

Destructive rules of certainty and efficiency: a study in the context of summary judgment procedure and the Uniform Customs and Practice for Documentary Credits. 28 Loy LA LR 619 (January 1995).

Two-way fee shifting on summary judgment or dismissal: An equitable deterrent to unmeritorious lawsuits. 23 Pepperdine LR 125 (1995).

Summary judgment and Title VII after Hicks: how much evidence does it take to make an inference? 28 UC Davis LR 261 (Fall 1994).

CEB

CEB Action Guide, Preparing for Trial (Summer 1992). California Continuing Education of the Bar.

CEB Action Guide, Deadlines During and After Litigation (Spring 1992). California Continuing Education of the Bar.

CEB Action Guide, Making a Summary Judgment Motion (Spring 1992). California Continuing Education of the Bar.