Nuts and bolts of summary judgment oppositions — or, how to keep your sanity and your job
It has happened to all of us. You are having what all would agree is a wonderful day; your attorneys are in great moods; you’ve only had to put out ten fires instead of the usual fifty; there aren’t any rush projects that need your attention; and you think to yourself, “nothing could ruin this day.” You saunter over to your mailbox wondering if there will be anything interesting to deal with when you see it; that dreaded stack of papers, 400 pages at least, rubber-banded together; a Motion for Summary Judgment! Immediately, the wheels in your head start to spin, hearing dates, oppositions, discovery, experts, declarations. Wait! When is the trial?
Why does this stack of papers cause so much angst? Perhaps it is because you understand that this one document can mean the end of your client’s case if the opposition is not strong enough to overcome it. Maybe it is because while you know the rules surrounding this type of motion, you may not understand what all of the pieces mean. Could it be that it is your first time dealing with this type of motion and you’ve heard countless war stories from your colleagues regarding how complicated the statute is, and how involved and time-consuming preparation of the opposition will be? Whatever the reason, in order to best support your attorneys as they prepare the opposition, as legal assistants you must understand the pieces of the motion, the rules surrounding it and your role in making certain that the opposition is completed and filed with the court in a timely fashion.
The fundamental principle surrounding motions for summary judgment or motions for summary adjudication of issues is this: The summary judgment statute, Code of Civil Procedure section 437c, is a complicated statute. Failure to comply with any part of it could be fatal to the offending party. (Hawkins v. Wilton, (2006) 144 Cal.App.4th 936.) The court could not make more clear the importance of understanding the statute.
MSJ compared to MSAI
What is a motion for summary judgment (MSJ) and how is it different from a motion for summary adjudication of issues (MSAI)? What documents can you expect to see and what is the purpose of each? What is involved in preparing an opposition and what documents need to be included? What things can you do in order to avoid last-minute fire drills, ensure that the opposition gets completed and filed timely, and how do you best support the attorneys who are preparing the opposition?
An MSJ or MSAI can be filed by either plaintiffs or defendants. The statute is written in terms of the moving and opposing party not plaintiffs or defendants. My natural tendency when talking about these motions, however, is to refer to them as a defendant’s motion because I have spent the last eighteen years working in a plaintiffs’ firm. For purposes of this article, the “moving party” is the defendant and the “opposing party” is the plaintiff, but keep in mind that this is not necessarily true in all cases.
An MSJ is the defendant’s effort to show conclusively that there is no merit to the plaintiff’s case. The motion is based on evidence and it is the defendant’s attempt to defeat the plaintiff’s case prior to trial. Sometimes, a defendant will file knowing full well there is zero hope of prevailing. You might ask yourself, why bother? It is a tactical move. The defendant knows that, to oppose, the plaintiff has no choice but to reveal their case. The defendant is hoping to obtain the plaintiff’s version of the story, figure out who the experts are going to be and what the theory of the case is.
An MSAI is much like an MSJ in that it seeks similar relief; however, it applies to individual causes of action, or claims for punitive damages, not to the entire case.
In a nutshell then, the only difference between these two motions is that an MSJ seeks to resolve the entire matter in favor of the moving party while an MSAI seeks to resolve individual causes of action or issues in favor of the moving party. It is not uncommon to see parties ask for summary judgment, or in the alternative, summary adjudication of issues within the same motion. The thought behind this is again tactical. The moving party is hoping that if the court denies summary judgment, it will grant summary adjudication as to some of the causes of action, thus streamlining the case.
Statutory notice requirements
Notice requirements are the same for MSJs and MSAIs and are governed by Code of Civil Procedure section 437(c). These motions must be filed and served at least 75 calendar days (not court days) before the hearing. This time is increased by five calendar days if the motion is served by mail within the state of California and two court days if served via fax (parties must stipulate), express mail, or any other overnight delivery service.
Parties can stipulate to shorter notice if they wish, but the court CANNOT impose a shorter time over a party’s objection. (McMahan v. Superior Court (2003) 106 Cal.App.4th 412.)
These motions must be heard at least 30 calendar days before trial. Parties can stipulate to waive this requirement if they wish; or the court can, for good cause, set the hearing closer to the trial date.
The summary judgment or summary adjudication motion (California Rule of Court 3.1350)
Regardless of the type of law practiced by your firm, the documents that make up the MSJ/MSAI are the same and consist of the following:
- Notice of motion: This is the when, where, and why. It tells you when and where the motion will be heard, and more importantly the grounds on which the motion is being brought. Typically it is based on one of two theories. Either the defendant did nothing wrong, or, whatever it did (or failed to do) is not what caused injury to the plaintiff.
- Memorandum of points and authorities: This is the legal argument portion of the motion. It needs to include statements of fact, concise statements of law, evidence, and arguments relied upon in support of the position taken as well as a discussion of statutes, cases, and other sources cited in support of your position.
- Separate statement of undisputed material facts: If these motions were living, breathing organisms, this document would be its heart. It consists of a series of assertions or statements of fact with references to admissible evidence which support the facts. The separate statement gives you an opportunity to tell your client’s story, without the constraints of the 20-page limit in the supporting memorandum of points and authorities. Make the most of this opportunity!
- Request for judicial notice: This document is optional and thus its non-inclusion should not be of great concern. Its inclusion or lack of depends on the case. If included, it is simply a request that the court consider documents that have been previously filed in another case or some type of government record.
- Proposed order and/or proposed judgment: In most instances, you will see not only a proposed order but also a proposed judgment. The proposed order grants the motion. The proposed judgment ends the case.
- Evidence in support [of the motion]: Every assertion of fact in the separate statement of undisputed material facts must include a citation to supporting admissible evidence and this evidence must be submitted as a separate document packet. The volume(s) of evidence can be a few pages, or several hundred, depending on the case. Typical evidence includes but is not limited to expert declarations, percipient witness declarations, portions of deposition transcripts, discovery requests and responses, and records (medical, police, employment, etc.).
The evidence packet must also include declarations authenticating exhibits. Often an attorney can authenticate documents, but not necessarily. Attorneys cannot authenticate documents simply because they are attorneys. For example, attorneys cannot authenticate medical records. They can authenticate discovery documents that they have seen and reviewed in the file.
Knowing what documents need to be included in these types of motions will help you as you begin to process the motion. You can begin to look for glaring deficiencies, such as the moving party’s failure to include a separate statement, for example, and make your attorneys aware of them immediately so that they can be addressed either before the opposition due date or in the opposition itself.
The opposition papers (California Rules of Court 3.1350 and 3.1354)
Opposing papers are meant to respond to each of the documents in the moving papers. It is not surprising to find that the opposition contains the same types of documents:
- Memorandum of points and authorities: As in the moving papers, this document contains the legal argument. It needs to include statements of fact, concise statements of law, evidence, and arguments relied upon in support of the position taken. Likewise, it contains a discussion of statutes, cases, and other sources cited in support of the plaintiff’s position.
- Response to separate statement of material facts and statement of additional material facts: This is the heart of the opposition. In fact, some judges say that this is the most important and first document they review. Telling your client’s story can be a bit harder as the opposing party, because in the first portion of the responsive separate statement, you must respond to each of the defendant’s facts. But after you have responded to all the defendant’s facts, you can (and should) take the opportunity to tell your client’s story your way, as “additional facts.” Your attorneys can retell the story with their own supporting evidence and can add additional material facts if they feel something was left out of the moving parties’ separate statement. It is important to understand that the crux of the argument is within the disputed (or undisputed) material facts and the response to separate statement and statement of additional material facts outlines those disputes.
There are instances when plaintiffs and defendants may not agree to the facts at all. For example, the defendant may say that the plaintiff ran a red light while the plaintiff contends that the defendant ran the red light. Other times, both sides can agree to the facts but not agree to the legal significance of those facts. For example, in a medical-malpractice birth-injury case, both sides might agree that the baby’s cord was wrapped around its neck; however, the parties disagree on the legal significance of that fact. The defendant may contend that it wasn’t the cause of the injury, but the plaintiff contends it was.
Ultimately, if the case makes it to trial, the jury must decide the disputed facts. It is altogether possible that plaintiffs and defendants agree to all the facts but disagree to their legal significance. For example, returning to the example of the medical-malpractice case, it is possible that both sides agree about what the defendant doctor did, but they disagree about whether it met the standard of care. Expert declarations, which are part of the moving and opposing papers, will support the argument made by each side and ultimately, a jury will have to resolve the question and decide which expert to believe.
- Request for judicial notice: This document is again optional. If included, it is simply a request that the court consider, for example, documents previously filed in another case or some type of government record.
- Evidence in opposition: The plaintiff’s volume(s) of evidence support the response to separate statement and separate statement of additional material facts. It will consist of expert declarations supporting the opposition and declarations authenticating exhibits. The exhibits may include different types of records (medical, employment, police, etc.), discovery requests and responses, and portions of deposition transcripts.
- Objections to evidence and proposed order to objections to evidence: This document contains the plaintiff’s objections to the evidence provided in support of the MSJ/MSAI. Remind your attorney that objections must be contained in this separate stand-alone document, not in the response to separate statement. This document is filed with the court, which is important if the matter is ever taken up on appeal, and becomes part of the record. The proposed order is only lodged with the court. There are different approved formats for this document. (Cal.R.Ct. 3.1354(a).)
The opposition to an MSJ/MSAI is due 14 calendar days before the hearing. It must be either hand delivered or served by overnight delivery in order to ensure delivery to the opposing party not later than the close of the next business day after filing. The opposition papers may also be served via fax or email, however, parties must stipulate to this type of service.
The moving party may file a reply to the opposition which must be filed and served five calendar days before the hearing. It may be either hand delivered or served by overnight delivery in order to ensure delivery to the opposing party not later than the close of the next business day after filing. Like the opposition papers, parties may also stipulate to service via fax or email if they wish.
When the papers arrive – avoiding a fire drill
Upon receipt of an MSJ/MSAI you should calendar the hearing and check to see if proper notice was given. If notice is improper, that is grounds for the motion to be denied, or at the very least, taken off calendar and rescheduled – assuming there is enough time.
Calendar the due dates for the opposition and reply. Look through the papers and check to see if there are any glaring deficiencies. Perhaps the moving party forgot to include a signed expert declaration or any expert declaration at all (and one is required because of the issue being adjudicated) or maybe the separate statement is missing. These too can be grounds for a denial or at the very least, to have the motion taken off calendar and rescheduled, assuming there is enough time.
Also look to see what the scheduled hearing date is in relation to the trial date. Remember that these motions must be heard at least 30 days before trial. Some of the courts in Southern California are extremely backlogged and they simply don’t have enough hearing dates to go around. This is becoming a huge problem because many defense firms are using the lack of hearing dates for an MSJ/MSAI as a reason for seeking a trial continuance.
Make sure that your attorneys are immediately made aware of any instances in which the hearing date falls within the 30-day window to trial so that they can seek immediate court relief. Your client should not be prejudiced by the defendant’s lack of planning.
Once everything has been calendared and any glaring deficiencies noted, distribute copies of the motion to the appropriate people in your office. This may include the partner or associate working on the case as well as other legal assistants on your team who will assist with the preparation of the opposition. It is wise at this point to scan the documents into your computer system and to begin formatting the defense declarations as usable text so that your attorneys can manipulate them easily when drafting their objections to evidence.
Depending on the scope of your authority, immediately request an electronic version of the moving parties’ separate statement of undisputed material facts (Cal.R.Ct. 3.1350(i)) and begin to format the response. Depending on your knowledge of the case, if you know who your supporting expert is going to be, send that person the defense expert declarations and separate statement of material facts, since as we’ve discussed, they are the most important parts of the moving papers. Make sure that you have the expert’s curriculum vitae to attach to the declaration or, if you do not, request it immediately.
Have a conversation with your attorneys early on and decide whether or not the motion is going to be opposed. If the motion isn’t going to be opposed, your attorneys will need to negotiate a waiver of costs, sanctions, and potential malicious prosecution in exchange for the non-opposition. It is a good practice to have a standard waiver that you can send out once your attorneys have made the decision about whether or not the motion is going to be opposed.
Begin drafting the experts’ declarations and declarations to authenticate the exhibits. Some attorneys prefer to draft these declarations themselves but it is extremely helpful if you create the initial “shell” containing the proper formatting and opening paragraphs since those things are for the most part cursory.
Keeping your attorney, and you, organized
Organization is the key to calmly and timely completing and filing an opposition to an MSJ/MSAI. Little things make a world of difference. For example, make a schedule of when things are due; not just by statute or rule, but when they are due in your office and by whom. Schedule regular meetings with your attorneys to discuss the motion and the status of the opposition. If your office uses an electronic calendaring system, consider creating a rule that automatically calendars a meeting every “X days” or “X weeks” in order to accomplish this.
Your experts will need to review a large amount of material in order to complete their declarations. Create a chart to keep track of material which was sent to them. What was sent? When was it sent? When will your attorney meet with the experts to discuss their opinions? Were the experts sent everything needed in order to form an opinion? These questions should be in the forefront of your mind and thus the forefront of your attorney’s mind.
Another thing to consider is that while the crafting of the expert declaration is supposed to be a collaborative exercise between your attorneys and the expert, it often falls to the attorneys to craft and the expert to revise. Re- mind your attorneys to be cautious in the language they use. Anticipate that these declarations will be used for cross-examination or impeachment at deposition or trial. Encourage your attorneys to consult with the expert, either in person or via telephone, multiple times before reaching a final draft of the declaration.
Remind your attorneys that in theory, everything that you send the expert is discoverable (all drafts of declarations, emails, text messages, etc.) once experts are designated. Encourage your attorneys to call the experts rather than sending multiple back-and-forth emails; you can facilitate this by scheduling the phone conferences for them.
Consider the legal experience of the expert you are using. If you are working with someone who has little or no experience as a retained expert, additional time may be required to draft and finalize the declaration. It may require additional meetings or phone calls and that will have to be factored into your opposition completion timeline.
Encourage your attorney to finish the declaration early. There are two reasons for this: First, it gives you time to start pulling and underlining deposition testimony referenced in the declaration. Second, it can be sent to defense counsel before the actual opposition is due. At times, the defendant will take the motion off calendar after seeing that there is a triable issue of fact. This is not uncommon. Your attorney must allow enough time for defense counsel to review the declaration and send it to their client or principal and defense experts for review.
Have regular meetings with everyone on your team who is involved in any aspect of the opposition and create a worksheet or chart clearly delineating the timetable, tasks and urgency of those tasks, and task assignments. You may even consider displaying this chart somewhere in your office so that everyone in the office, not just your team, is aware of all upcoming MSJs/MSAIs and of the time constraints for you and your attorneys.
If your attorney is one of those “rare” procrastinators, keep in mind that you may have to push a bit more forcefully or remind a bit more regularly of impending deadlines. Related to this is whether or not your attorney has experience opposing MSJs/MSAIs. If you are working with an inexperienced attorney, you may want to adjust your timeline to give that person more time in which to accomplish what would take an experienced attorney half the time to finish.
Discussing with your attorney and determining whether or not all necessary discovery has been completed, or will be completed, in time to oppose the motion is of critical importance. Though you have 75 days, 80 in some instances, to prepare the opposition, this time passes quickly. If there is a deposition that you know will be needed in order to oppose the motion, make certain that your attorney is aware of the time constraints for ensuring that it goes forward. Also, allow enough time to receive and review the deposition transcript as well as send it to your experts for review and discussion. Do not let your attorney fall behind.
In the unlikely event that your attorney needs more time in order to conduct discovery, consider requesting a continuance of the hearing if time allows. In times like these, a good working relationship with opposing counsel is key and they may consider moving the hearing as a professional courtesy. If not, your attorney will need to seek court relief (CCP 437(c)(h)) and you will need to figure out the appropriate time to do that.
Formatting the opposition documents
Keep in mind the various rules related to the physical formatting of the documents. (Cal.R.Ct. 2.104, 2.108, 3.1113, 3.1116, 3.1350 and 3.1354.) The most important relate to the memorandum of points and authorities. There is a 20-page maximum (compared to 15 for other types of motions) and if additional pages are needed, your attorney will need to seek ex parte relief at least 24 hours before the due date for the opposition.
You cannot file a points and authorities memo exceeding the 20-page limit concurrently with a request for additional pages. (Cal.R.Ct. 3.1113(d)). If this document is more than 10 pages in length, it must include a Table of Contents and a Table of Authorities (Cal.R.Ct. 3.1113(f)); and if more than 15 pages, it needs to include an opening summary of argument. (Cal.R.Ct.3.1113(f)). Pagination must be consecutive Arabic numerals beginning with the face page of your document, the face page is page one and the page number may be omitted from this page. (Cal.R.Ct. 3.1113(h)). If your attorneys find themselves in a bind, 12-point font and 1.5-line spacing may be used. (Cal.R.Ct. 2.104 and 2.108) But be warned that it might be difficult to read and you do run the risk of annoying the judge.
When formatting the volume(s) of evidence, include all signed final versions of the declarations in support, and if including non-party medical records as exhibits, don’t forget the Custodian of Record declaration. If deposition transcripts are being used as exhibits, include the face page of the transcript and either underline or highlight the referenced testimony. (Cal.R.Ct. 3.1116(a).) You might also want to include the court reporter’s certificate, though it’s not required. Keep the length manageable; under 300 pages per volume is ideal.
When formatting the response to separate statement of material facts and statement of additional material facts, remember that it must be in two columns. The left-hand column must list verbatim each material fact claimed by the moving party along with that party’s evidence below it. The right-hand side of the page, directly across from the moving party’s material fact and evidence, must state the response, “disputed” or “undisputed.” If disputed, the nature of the dispute and the supporting evidence must be listed. (Cal.R.Ct. 1350(h).)
There are a couple of different approved formats for the objections to evidence and proposed order on objections to evidence which are outlined in Cal.R.Ct. 3.1354.
Preparing an opposition to an MSJ/MSAI is not for the faint of heart. It requires a deep understanding of the governing statutes as well as support staff with an equally deep understanding. Taking the time to understand the documents and their purpose, coupled with an understanding of the rules will make you an indispensable part of your attorney’s team. Your role in helping prepare the opposition is not merely one of rule regurgitation. You are a part of the thinking team and should not sell yourself short. You are the eyes and ears of your attorney and advocates for your clients. Push yourself to be better, push your limits of understanding, push your attorneys to be better and encourage them to prepare their papers the correct way. After all, the other side may not necessarily know what it is doing and that could be their fatal mistake.
Rose Gutierrez is the Litigation Manager at the law firm of Michels & Lew which represents catastrophically injured plaintiffs throughout California in medical malpractice and personal injury actions. For the last 15 years, Rose has overseen and managed the firm’s litigation assistants and all cases that are in active litigation. She holds a B.S. in mathematics and a Masters in Education from UCLA. Before joining Michels & Lew, Rose was a mathematics instructor for LAUSD and the Mathematics Project at UCLA.
Copyright © 2021 by the author.
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