Appellate resuscitation

Your summary judgment on appeal

Herb Fox
2020 December

Next to an anti-SLAPP motion (may you never face one!), a summary-judgment motion is a defendant’s best friend.

After the plaintiff spends much time and even more money on discovery and experts, the defendant makes a drive-by effort to short-circuit plaintiff’s right to (and the defendant’s risk of) a jury trial. If the trial court is convinced that there are no triable issues of material disputed fact and that the defendant is entitled to a judgment as a matter of law, the defendant wins. Not incidentally, so does the judge, who clears another case off a crowded docket and avoids the agonies of presiding over a jury trial.

What’s a defeated plaintiff to do? Appeal, of course. A summary-judgment appeal presents an opportunity for a true “second bite” review – with some exceptions – by a panel of three justices who will spend more time with the evidentiary record and the law than did the trial judge. Appellate review of summary judgments and adjudications provides plaintiffs with an opportunity to breathe new life into their case, but only if the evidentiary record is solid, properly presented, and the law is on your side.

Here then, is a brief guide through the arcane world of appellate review of MSJs and MSAs.

Appellate review can be a beautiful thing but can also bite back

Appellate review of a summary judgment or adjudication can be a beautiful thing because the reviewing court will conduct a de novo examination of the record with a thumb on the scale in favor of the appealing party.

On appeal from a summary judgment, the reviewing court independently examines the record in order to determine whether triable issues of fact compel reinstating the action. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.) In performing that de novo review, the court views the evidence in the light most favorable to the plaintiff as the losing party. (Ibid.)  It will “liberally construe the plaintiff’s evidentiary submissions and strictly scrutinize the defendant’s evidence in order to resolve any evidentiary doubts or ambiguities in plaintiff’s favor.” (Ibid.) And if the outcome turns on an issue of law – such as the existence of a duty – the appellate court will exercise independent review of that as well. (Id., at 1147.) In practical effect, the appellate court assumes the role of the trial court, and “any doubts about the propriety of summary judgment must be resolved in favor of the opposing party.” (Castaneda v. Ensign Group, Inc. (2014) 229 Cal.App.4th 1015, 1019.)

So far, so good for the plaintiff-appellant. But the summary- judgment appeal is not always a cakewalk through the appellate minefield for several reasons.

First, in conducting its independent review, the appellate court is not restricted to review of the trial court’s reasoning but will decide whether the decision is correct on any possible ground. (Colarossi v. Coty U.S. Inc. (2002) 97 Cal.App.4th 1142, 1149.) Because the appellate court reviews the “ruling, not the rationale,” it may affirm a summary judgment on a different basis than the trial court. (Skillin v. Rady Children’s Hospital-San Diego (2017) 18 Cal.App.5th 35, 43; see also Coral Construction Inc, v. City and County of San Francisco (2010) 50 Cal.4th 315, 336 [“The trial court’s stated reasons for granting summary judgment are not binding ....”].) All legal theories that may support the judgment are fair game on appeal as long as the parties had an adequate opportunity to address the theory in the trial court. (California School of Culinary Arts v. Lujan (2003) 112 Cal.App.4th 16, 22.) If the Court of Appeal is inclined to affirm the summary judgment on grounds not relied upon by the trial court, however, it must first invite supplemental briefing by the parties to address the issue, and to request a remand to the trial court to present additional evidence or undertake additional discovery. (Code Civ. Proc., § 437c, subd. (m)(2).)

In effect, these standards mean that a summary-judgment appeal reopens the case anew and allows the defendant to urge the Court of Appeal to affirm on a completely different basis than the one adopted by the trial court. Simply put, if summary judgment was sought on four grounds but granted on only one, the other three grounds remain open for adjudication by the appellate court with supplemental briefing if the issue was not discussed in the original appellate briefs. This, in turn, has implications for the scope of the appellate briefs (and the cost of prosecuting the appeal!).

Next, the de novo standard of review does not apply to evidentiary rulings, which can be determinative in a summary judgment motion. Although there has been disagreement among California courts over the appropriate standard of review of trial court evidentiary rulings in an appeal from a summary judgment, the prevailing view is that the rulings are subject to the abuse-of-discretion standard, significantly diminishing the chance of convincing an appellate court that an adverse evidentiary ruling that tipped the summary judgment issues was error. For a thorough but disappointing overview of the issue, see the recent case of Ducksworth v. Tri-Modal Distribution Services (2020) 47 Cal.App.5th 532, 543-544.

On the other hand, in Reid v. Google (2010) 50 Cal.4th 512, the Supreme Court held that evidentiary objections properly raised in the trial court in a summary judgment proceeding, but not ruled on, were preserved for the appellate court’s independent review. But Reid ducked the issue of the standard of review of the objections that the trial court did rule on. And from that perspective, it might be to a plaintiff’s advantage if the trial court neglects to rule on an evidentiary objection. But, of course, the failure to make the objection at all will forfeit the evidentiary issue on appeal. (Evid. Code, § 353.)

Navigating through appellate remedies and deadlines

Appellate review of summary judgment rulings is governed by Code of Civil Procedure section 437c, subdivision (m)(1), the language of which is not a model of clarity.

The remedies boil down to this: An actual final judgment rendered by way of an MSJ is immediately appealable as any other final judgment. All other orders – including an order denying summary judgment or an order granting or denying a summary adjudication of issues or causes of action (Code Civ. Proc., § 437c, subd. (f)) – “may” be challenged by a petition for writ of mandate. A writ petition is not the exclusive appellate remedy, however, because, at least in theory, that order is preserved for review upon an appeal from a later final judgment that disposes of the entire case. The practical reality is somewhat different, as we shall see.

Let’s unpack.

Appealing a summary judgment

The right to appeal lies from a judgment entered pursuant to an order granting summary judgment. Only the judgment itself, and not the order granting summary judgment, can be appealed. (Saben, Earlix & Associates v. Fillet (2005) 134 Cal.App.4th 1024, 1030.) Attempting to appeal from the order is a common error that could lead to dismissal of the appeal. (Modica v. Merin (1991) 234 Cal.App.3d 1072, 1075.)

Note also that a summary judgment entered as to one (or more) of several defendants, leaving other defendants on track for trial, must be immediately appealed to preserve appellate jurisdiction if the judgment fully terminates the litigation as between plaintiff and that defendant (if no cause of action or cross-complaint remains pending as to those parties.) (See, e.g., Westamerica Bank v. MBG Industries, Inc. (2007) 158 Cal.App.4th 109, 132.)

At the same time, filing a notice of appeal as to the defendants in whose favor the summary judgment was entered will not automatically stay the trial proceedings as to the remaining parties. Such a stay is discretionary, however, with the trial court and is often granted to conserve judicial resources and/or where a latter judgment will leave issues unresolved while the appeal winds its way up the ladder. Another alternative is to reach a stipulation to withhold entry of a formal judgment as to the defendants who won the MSJ, so that any appeal will encompass all parties and issues.

Immediate writ review of all other dispositions

All other dispositions of an MSJ or MSA – an order denying the MSJ, or denying or granting an MSA in whole or in part – “may” be challenged by a writ petition that is filed within 20 or 30 days of notice of entry of the order, plus additional time if the notice is mailed or faxed. (Code Civ. Proc., § 437c, subd. (m)(2).)

But this statutory invitation to seek interlocutory review by way of a writ petition should not be mistaken for an assurance that the appellate court will consider the merits. Writ review of MSJ/MSA orders remains wholly discretionary with the appellate court because the orders remain appealable from a final judgment. Writ review may be proper, however, “where a pretrial ruling has summarily disposed of a large portion of the case, while several causes of action remain for trial.” (Fisherman’s Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 319; see, e.g., Rehmani v. Superior Court (2012) 204 Cal.App.4th 945, 949-950 [writ review granted so to “obviate a duplicative expenditure of resources for the courts and the parties, because any reversal of the judgment on appeal would require a second trial on claims that arise out of the same facts and overlap with the issues in those causes of action that have withstood the summary adjudication motion.”].) Writ review of an MSA order may also be appropriate when the petition presents a “significant issues of first impression.” (Noe v. Superior Court (2015) 237 Cal.App.4th 316, 325.)

The failure to seek interlocutory review does not waive the right to appeal from an order denying an MSJ or granting/denying an MSA, upon an appeal from the final judgment after trial. (Angelica Textile Services, Inc. v. Park (2013) 220 Cal.App.4th 495, 503-504.) Nor will the Court of Appeal’s summary denial of the writ petition, without issuing an opinion on the merits, constitute law of the case that is binding upon a post-judgment appeal. (Kowis v. Howard (1992) 3 Cal.4th 888.)

Appeal of MSJ/MSA orders upon final judgment

There is no question that, in theory, orders denying an MSJ, or granting or denying an MSA, can be raised as error in an appeal from the final judgment. (See Code Civ. Proc., § 906 [allowing the appellate court to review, in an appeal from the judgment, “any intermediate ruling” that “involves the merits” or “substantially affects the rights of a party.”].) Where the plaintiff suffered an order striking a cause of action or claim of duty by way of an order granting an MSA, raising that issue on appeal may often make sense, and the order will be reversed where the appellate court finds there was a triable issue of fact as to the cause of action. (See, e.g., Stofer v. Shapell Industries, Inc. (2015) 233 Cal.App.4th 176, 179 [reversing the trial court’s order granting summary adjudication of plaintiff’s cause of action for fraudulent concealment].)

But a post-trial appeal from an order denying an MSJ or MSA on the grounds that plaintiff presented a triable issue presents a unique problem, in that it is virtually impossible to demonstrate that order was prejudicial error once the issue was actually tried on the merits. (Waller v. TJD., Inc. (1993) 12 Cal.App.4th 830. 836.) Put simply, a decision based on less evidence (i.e., the evidence presented on the summary judgment motion) “should not prevail over a decision based on more evidence (i.e., the evidence presented at trial.)” (Eisenberg, Cal. Pract. Guide: Civil Appeals and Writs (TRG, 2019), § 8.168.10.) Thus the rule is that an order denying an MSJ or MSA does not constitute prejudicial error if the same question was subsequently decided adversely to the moving party after a trial on the merits, but if the same question is not decided after trial, an appellant may be able to successfully assert on appeal that the trial court prejudicially erred in denying his or her MSJ or MSA. (Federal Deposit Insurance Corp. v. Dintino (2008) 167 Cal.App.4th 333, 343.)

Briefing tips

Just because the appellant in an appeal or writ petition from an MSJ or MSA enjoys a favorable de novo standard of review where the appellate court looks with favor on plaintiff’s evidence, does not mean that the appellant can simply repackage their points and authorities as an opening brief. Appellate briefing is much different than trial-court level briefing, and much more is expected of counsel.

Among other factors, appellate briefs are reviewed by a panel of three justices plus research attorney staff, and they will take much more time and care with the law and facts than did the trial court. (See In re Marriage of Shaban (2001) 88 Cal.App.4th 398, 408.) And, for that reason among others, appellate briefs are lengthier than points and authorities, allowing counsel freedom to explore the evidence and issues (Ibid.)

Further, the appellant has the burden of demonstrating reversible error, even if that party did not have the burden below. (Byars v. SCME Mortgage Bankers, Inc. (2003) 109 Cal.App.4th 1134, 1140.)

Here then is a non-exhaustive list of tips for briefing appeals and writ petitions from MSJ and MSA orders and judgments:

Always set forth in the brief, in narrative or other appropriate format, all of the facts (disputed or undisputed) that are material to the outcome of the case, along with a minimum of three (and often more) pinpoint record cites for each fact: where the fact is set forth in the separate statements; where evidence supporting the fact is located in the record; and where the fact was argued in the parties’ points and authorities.

It is not enough to simply point the Court of Appeal to the general location in the record of the parties’ separate statements. An appellant must direct the Court to the parts of the record that show the claimed error. “An appellate court is not required to search the record to determine whether or not the record supports appellant[’s] claim of error. It is the duty of counsel to refer the reviewing court to the portions of the record which support appellant[’s] position.” Under the California Rules of Court, each brief must ‘[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears.’ (Cal. Rules of Court, rule 8.204(a)(1)(C.)” (Citizens for Positive Growth & Preservation v. City of Sacramento (2019) 43 Cal.App.5th 609, 626 at fn.11.) If no citation ‘is furnished on a particular point, the court may treat it as forfeited. (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115.)

Take the time to explain why the cited facts are relevant to the outcome of the appeal. (Okorie v. Los Angeles Unified School District (2017) 14 Cal.App.5th 574, 600.)

Be sure to present all of the material facts, and not just those that support your client’s case. Appellate counsel is expected to provide the Court with “effective assistance in ferreting out all of the operative facts that affect the resolution of issues tendered on appeal. They can accomplish this only by summarizing all of the operative facts, not just those favorable to their clients.” (Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 113.) Nor is it sufficient to simply cite to the facts as set forth in the trial level points and authorities. (Orange County Water District v. Sabic Innovative Plastics US, LLC (2017) 14 Cal.App.5th 343, 376 at fn. 11.)

Brief the applicable law as if the appellate justices are smart but unschooled. They are usually generalists and handle cases from adoption to zoning and everything in between. Even though they have career research attorneys at their beckon, use this opportunity to educate the justices about the legal principles that govern the outcome of your appeal.

Herb Fox Herb Fox

Herb Fox is a Certified Appellate Law Specialist who exclusively handles appeals, writs, law and motion, and post-trial proceedings. He has been of-record in 250 appellate proceedings throughout California, and he is a member of the State Bar’s Committee on Appellate Courts. Herb can be reached at

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