Summary judgment motions are case killers

This is nit-picky business, especially when it comes to admission of evidence

Sharon J. Arkin
2020 December

I have been doing law and motion and appeals for plaintiff firms for many, many years (please don’t ask how many!). During most of those years, I did that work as an employee of a firm; for the last 11 years I’ve been retained by a variety of firms, both large and small, to do that work. So I’ve worked with a broad range of plaintiff law firms, in a variety of practice areas – but always on the plaintiffs’ side.

It might just be me, but my sense is that more summary judgments get filed every year, and that a larger percentage of them get granted every year. This is surprising since the “purpose of the summary judgment is to weed out nonlitigable cases, not to pretry and dispose of doubtfully successful ones. Over and over again it has been said that the procedure is drastic and should be used with caution (citation); that the moving party’s affidavits are to be strictly construed, those of his opponent liberally construed; and that ‘doubt’ is to be resolved against the moving party.” (Harding v. Mac Dougal (1969) 275 Cal.App.2d 396, 399-400.)

And a “defendant moving for summary judgment must show the plaintiff’s causes of action have no merit.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849, emphasis added.) In other words, summary judgment is not to be granted simply because a case is “weak” or because a “weak” showing was made in opposition. (Hagen v. Hickenbottom (1995) 41 Cal.App.4th 168, 187-188, superseded by statute on another point as recognized in Rice v. Clark (2002) 28 Cal.4th 89, 96; Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 589, 722. [“to avoid summary judgment a showing need not be strong; it need only be sufficient to raise a triable issue of fact.”].)

One other important standard applicable to summary judgments is the oft-overlooked rule that the opposing party’s evidence must be accepted as true. (Cheal v. El Camino Hospital (2014) 223 Cal.App.4th 736, 746; Nazir v. United Air Lines, Inc. (2009) 178 Cal.App.4th 243, 254.) You would think that, with such stringent standards for granting summary judgment, they would rarely be granted and such grants would be even more rarely affirmed. You would be wrong.

Thus, it is critical that in opposing summary judgment, you take it seriously and do it right. Half-hearted or off-the-cuff oppositions will result in judgments against you; thoroughly researched oppositions with detailed and admissible evidence will save you from a judgment.

There are three critical aspects of your opposition to a summary judgment you should pay particular attention to in order to ensure that you have the best chance of getting the motion denied: (1) Your separate statement; (2) your evidence; and (3) objecting to the defense’s evidence. You would think that the Memorandum of Points and Authorities (“MPA”) would be on that list but, again, you would be wrong. Although I personally think that the MPA is critical, even a cursory review of appellate decisions on summary judgment motion grants will find virtually all of them talking about the separate statement rather than the MPA. I’m not suggesting that you give the MPA short shrift by any means, but the other issues are even more important.

Preliminary considerations

In first reviewing the summary judgment motion, consider two things.

1. Has the defendant shifted its burden?

As discussed in Aguilar, a party moving for summary judgment has the initial burden to demonstrate either that: (1) The non-moving party does not have, and cannot reasonably obtain, evidence supporting their claim, or (2) Submit sufficient affirmative evidence to establish that there is no triable issue of material fact as to an element of the non-moving party’s claim. (Aguilar, 25 Cal.4th at p. 854.)

As explained by the court in Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1598 and cited with approval by Aguilar, at footnotes 19, 20, “a moving defendant now has two means by which to shift the burden of proof under subdivision (o)(2) of section 437c to the plaintiff to produce evidence creating a triable issue of fact. The defendant may rely upon factually insufficient discovery responses by the plaintiff to show that the plaintiff cannot establish an essential element of the cause of action sued upon. (Union Bank v. Superior Court, supra, 31 Cal.App.4th at p. 590.) Alternatively, the defendant may utilize the tried and true technique of negating (‘disproving’) an essential element of the plaintiff’s cause of action. (Chevron U.S.A., Inc. v. Superior Court, supra, 4 Cal.App.4th at pp. 552-553.)”

Thus, you should first look at the basis for the motion. If the defendant is moving for summary judgment on the basis that your discovery responses are factually devoid, review those responses. Many interrogatory responses by plaintiff counsel do, in fact, contain substantial “boilerplate,” i.e., repeated, rote information not directly related to the specific facts in the case. But if you’ve done a good job actually providing specific factual responses, even if there is also some “boilerplate” included, argue that the responses are factually sufficient to preclude defendants’ reliance on those responses to shift its burden. If that’s the only basis for the motion and you demonstrate that it is invalid, you should win without submitting any evidence at all. That being said, however, even if you believe you win on that basis, you should still submit evidence demonstrating the existence of disputed facts.

And if you haven’t included sufficient factual detail about your case and the evidence you have or expect to have, then let that be a lesson for you in the future. In that case, you are going to have to rustle up the actual, admissible evidence you need in order to oppose the motion.

2. Do you need more evidence?

As soon as the motion is received, review it to see if there are gaps in the evidence you already have that you need to fill before you can substantively challenge the summary judgment motion. If you do, move quickly to request production of documents, notice deposition, talk to witnesses and the like. Be proactive and thorough.

If you haven’t been able to get the evidence you need, either move ex parte to continue the motion under section 437c, subdivision (h) or request a continuance on that basis in your opposition. Look to Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 395, for the standards to be applied to such continuance requests and what you must show in order to qualify for a continuance.

Given that the notice period for summary judgment motions is now 75 days, you may be hard-pressed to demonstrate why you don’t have the evidence you need. But if you have tried to get the evidence you need and the other side has been dragging its feet, you can use that as good cause for the continuance; but document all the interactions and exchanges carefully so you can include the detailed information in your declaration in support of the section 437c, subdivision (h) request for a continuance.

The separate statement

Every summary judgment motion must be supported by a separate statement. The statement is supposed to set forth specific “material” facts and the admissible evidence “proving” each fact. California Rules of Court, rule 3-1350(h) actually lays out for you the format of the separate statement that is required by the rules. It’s basically a two-column format. The left column sets forth the defendant’s material facts sequentially with the supporting evidence set forth beneath each fact. In the moving papers the left column is blank.

In opposing the summary judgment motion, you must include a responsive separate statement that mimics the format of the one in the moving papers. In fact, California Rule of Court, rule 3-1350(i) requires the moving party to provide you, upon request, with an electronic (i.e., word processing) version of its separate statement that you can use as the basis for your separate statement.

In your responsive separate statement, you use the right-hand column. You are supposed to specifically state whether you dispute that material fact or if it is undisputed. You are not supposed to use the separate statement as a vehicle for setting forth objections, although that rule is frequently violated. When the defense makes some ridiculous statement of “fact” that is not supported by admissible evidence, it’s really hard not to object to it in the separate statement. And frankly, so long as you also provide a substantive response, inserting objections at that point may make the court sit up and take notice whereas the formal written objections (to be discussed later) may be given short shrift.

If you dispute a specific material fact, you must then cite to the specific evidence you submit in opposition to the motion demonstrating that there is a conflict in the evidence. If you just object, you will be deemed to have admitted the fact, so never, never, never, just object without also disputing the fact and identifying the evidence you rely on. That is unless, of course, you really don’t have any evidence to dispute that particular fact but you do have a valid objection to the evidence submitted by the defendant.

And don’t panic if you have to admit that, for purposes of the summary judgment motion, the fact is undisputed. A response of “undisputed” in a separate statement on summary judgment is a concession only for purposes of the summary judgment motion. It is not evidence (because it is not under oath or verified); nor is it a judicial admission. (Wright v. Stang Mfg. Co. (1997) 54 Cal.4th 1218, 1224, fn. 2, Myers v. Trendwest Resorts, Inc. (2009) 178 Cal.App.4th 735, 737.)

Frequently, the defendant’s fact will be something like this: “John Jones testified in deposition that the light was green.” That is not a proper material fact. The material fact is: The light was green. The evidence cited to support that statement is John Jones’ deposition at the specified line and page numbers. When most of the “material” facts in a defendant’s separate statement are framed in this improper way, I set forth an initial objection at the beginning of the separate statement, as follows:

INITIAL OBJECTION

Initially, plaintiff objects to the purported “material facts” submitted by defendants on the basis that they do not comply with the requirements of Code of Civil Procedure section 437c, subdivision (b)(1). As explained in Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 105-106: “At the threshold we observe that defendant has made our task – and that of the trial court – considerably more burdensome by its failure to comply with the requirement Code of Civil Procedure section 437c, subdivision (b)(1), that the moving party set forth ‘plainly and concisely all material facts which the moving party contends are undisputed.’ (Italics added.) Instead of stating clearly those material facts which actually are without substantial controversy, defendant offers a number of obliquely stated ‘facts’ that are material only to the extent they are controverted, and uncontroverted only to the extent they are immaterial. For instance, defendant asserts various ‘undisputed facts’ in terms not of relevant events but of what a witness has said about events, e.g., two Safeway employees ‘stated that Plaintiff followed them out of the store, telling them that he had moved Sandy Juarez out of the way by lightly/gently pushing her aside.’ It seems indisputably true that Brian Sparks so testified in deposition, though there is no competent evidence of such a report by the other worker, Barbara Flagen-Spicher. But what Sparks (or for that matter Flagen–Spicher) might have said in deposition is not, as such, a material fact.’ It is of interest only as evidence of a material fact, e.g., that plaintiff made a damaging admission about his confrontation with Juarez. That ‘fact’ is squarely controverted by plaintiff’s declaration that he made no such statement. We emphatically condemn Safeway’s attempt to circumvent that conflict by stating the supposed ‘fact’ in an attributive form.

“This stratagem takes an arguably even worse turn in Safeway’s assertion of ‘facts”’ in the form of supposed perceptions by witnesses. Thus it is said to be undisputed that ‘Brian Sparks overheard’ something, and that ‘Sandy Juarez and Staci Siaris both witnessed’ something. Ordinarily, however, the perceptions of witnesses are simply not ‘material facts,’ as that term is used in the summary judgment statute. The relevant question is whether the underlying facts – the events or conditions witnesses say they perceived – are established without substantial controversy. Defendant merely clouds the inquiry into that question by formulating the operative facts in the intermediate form of a witness’s perceptions or statements.

“We believe trial courts have the inherent power to strike proposed ‘undisputed facts’ that fail to comply with the statutory requirements and that are formulated so as to impede rather than aid an orderly determination whether the case presents triable material issues of fact. If such an order leaves the required separate statement insufficient to support the motion, the court is justified in denying the motion on that basis. (See § 437c, subd. (b)(1).)”

As identified below, defendants’ separate statement violates these principles and the identified “material facts” should be stricken.

Is that hyper-technical and nit-picky? Sure. But you need to realize, accept and act on the fact that summary judgments in general are hyper-technical and nit-picky. The defense is not ever going to give you a pass, and you shouldn’t give them one.

The most important thing you must do in your separate statement is specifically identify the precise evidence you are relying on for disputing the defenses’ material fact. You cannot simply say, “See Smith Declaration.” A hyper-technical court will tell you that it has no responsibility to go searching through your opposing evidence to find the bits and pieces that help you. Rather, you must provide the court with a pin-cite to the specific line and page of the deposition, the paragraph of the declaration or the precise page of a multi-page exhibit.

Additionally, defendants will often craft their “material facts” in such a way that it appears they have shifted their burden but which, in fact, leaves out several material facts that demonstrate their liability. For example, an insurer may lay out the facts of the claim in a bad-faith case, e.g., when the claim was made, the communications between the parties and the fact that the policy limits were paid. But what they don’t say is that the adjuster was nasty, unreasonably delayed payment and unreasonably applied depreciation.

When that happens, there are two things you can do. When they say, for example, that the full policy limits were paid on the claim, you can dispute that purported fact and point out the evidence that demonstrates the bad faith conduct. Alternatively, or in addition to that, you can add your own additional material facts to the separate statement.

In that case, once you have addressed the defendants’ material facts, Code of Civil Procedure section 437c, subdivision (b)(3) allows you to set forth your own section in the separate statement. In that section you again use two columns. In the left-hand column you set forth your own material fact and in the right-hand column put the reference to your evidence that supports that fact.

In preparing your separate statement in opposition to the motion, be thorough and be precise. In reviewing the motion, the first place the judge will look to find out what the motion is about is the separate statement. Tell your factual story there and don’t skimp on the time you devote to it.

Your evidence

The real heart of your opposition will be the evidence you submit.

You must have a strong grasp of the rules of evidence in order to make sure your evidence is admissible. On the other side of the coin, as discussed in the next section, you can often gain a huge advantage if you know the rules of evidence and your opponent does not.

You can use the declaration of your client, a declaration from a percipient witness, or an expert’s declaration, depending, of course, on the issues. Although declarations are normally not admissible because they are hearsay, the summary judgment statute specifically permits submission of declarations as evidence in support of or in opposition to the motion. (Code Civ. Proc., § 437c, subd. (b)(1) and (b)(2).) But you must make sure that the statements made in the declarations (with the exception of experts) are based on personal knowledge.

And with regard to expert declarations, you must make sure that they pass the Sanchez test and if your expert cannot foundationalize a report that they rely on, you will have to get the declaration of the person who can foundationalize the report. (People v. Sanchez (2016) ) 63 Cal.4th 665, 685-686.) I know it’s a pain, but you must dot every “i” and cross every “t,” especially with the evidentiary issues, or you, and your client, are doomed.

Also, when submitting declarations, always be sure that the declarations state that they are executed under penalty of perjury under the laws of the State of California.

You can also use the deposition testimony taken in the case, including your client’s deposition, the deposition of the defendant or defendant’s employees, and a deposition taken in the case of any other witness with relevant testimony.

You can also use deposition testimony taken in other cases, which often happens in product-liability cases. But if you use depositions from other cases, you must be sure to properly foundationalize the deposition as set forth in Evidence Code sections 1290-1292.

For example, to get such evidence admitted, you have to demonstrate that the deponent is unavailable as defined in Evidence Code section 1240 (e.g., the deponent is dead, out-of-state, or has a mental or physical illness that precludes their testimony). Note that the evidence establishing their unavailability must itself be admissible. I have opposed summary judgments where the defense has tried to rely on depositions in other cases to which my clients were not a party. In an effort to demonstrate that the deponent was unavailable, the defense counsel simply asserted that in their declaration. Not good enough because they don’t establish a basis for personal knowledge (like going to the funeral). They have also used non-certified death certificates as exhibits. Again, not good enough. They have also used Social Security records downloaded from the Internet. Not good enough. A defense counsel once tried using a declaration of the deponent’s doctor filed in another case years before, saying the deponent was too ill to have his deposition taken. Not good enough because counsel did not substantiate any basis for assuming that was still true. Oh, and because the declaration was signed in another state, and did not recite that it was signed under penalty of perjury under the laws of the State of California, the declaration was inadmissible in any event.

Evidence code may be changing

Note, however, that the application of Evidence Code sections 1290-1292 in summary judgments may be changing. In Sweetwater Union High School District v. Gilbane Building Co. (2019) 6 Cal.5th 931, the Court held, in an anti-SLAPP action where the plaintiff is required to establish a prima facie case in order to proceed, that submission of depositions from a different case was proper despite the fact that they are hearsay and otherwise subject to exclusion under sections 1290-1292. Although no published decision has yet held that the same analysis applies in the summary-judgment context, the Sweetwater court itself suggests that it should.

Again, this is nit-picky business and you have to be really careful every step of the way. The upside is that the defense has to be really careful too, and they often aren’t – which leaves the door open for you to get the moving party’s evidence excluded. And exclusion of the defendant’s evidence supports an argument that defendant did not shift its burden.

You can also use the interrogatory responses of the moving party. But note that you cannot use the interrogatory responses of any other party against that defendant. (Code Civ. Proc., § 2030.410.) And, of course, you can use the admissions of the moving party, if there are any.

Documents submitted in opposition to the motion for summary judgment must also be admissible. For example, you, as an attorney, cannot foundationalize a document provided by your client; you must instead have your client foundationalize it by way of their own declaration. The exception is if the document has been produced under oath in response to a specific discovery request.

Government documents submitted for the truth of the facts asserted must be foundationalized by way of judicial notice, with submission of a copy of the document certified by the issuing government agency. (Evid. Code, § 1530, subd. (a).)

It is critically important that you pay close attention to admissibility issues and make sure your evidence is admissible. Learn the rules. But looking at the Evidence Code by itself is simply not enough. You need to know the cases and how the rules apply.

Objecting to the defense evidence

All the rules discussed above apply with equal force to the evidence submitted by the moving party. If the defense does not submit admissible evidence, their motion cannot be granted. As the court in Nazir explained, only material facts are to be included in the separate statement and if even a single material fact is insufficiently supported by the evidence submitted by the moving party or is adequately challenged by the opposing party, the motion should be denied. (Nazir, at 252.) Fundamentally, if the evidence submitted by the moving party is not admissible as to a material fact, you can argue that the defendant has not shifted its burden of proof.

So, comb through the defense’s evidence with your nit-pick in hand and object to anything that is not admissible.

There is some conflict about when and how to object to the moving party’s evidence. The Rules of Court mandate that evidentiary objections must be in writing, and again provide suggested formats to make reviewing and ruling on the objections easier and faster for the trial court – always a good thing. (Cal. Rules of Court, rule 3.3514.) But the summary-judgment statute itself states that objections not made at the hearing are waived. (Code Civ. Proc., § 437c, subd. (b)(5).) If, for some reason, you have not been able to file written objections before the hearing, be sure to request a court reporter and recite them into the record at the hearing. You may get pushback from the judge, but just politely remind the court that you are entitled to make your record and will do so as quickly and comprehensively as you can. But, really, written objections in one of the formats set forth in the rule is, by far, the best way to go.

Also, if you do the written objections, you can easily convert that document into a proposed order that you should also submit before the hearing. Simply insert lines for “Sustained” and “Overruled” so that the court can easily rule on the objections.

Your Memorandum of Points and Authorities

Do not neglect the MPA. Use it to tell your story, referencing your evidence as laid out in the additional material facts in your separate statement. Using your version of the events, you can then tailor your legal argument to that scenario, thereby providing the court with a cogent and coherent basis for denying the motion. Be as thorough as possible, raising every potential legal argument you can.

Conclusion

Take summary judgment motions seriously. They can end your case and just because the standard of review on appeal is de novo, don’t assume that will help you. Appellate court judges themselves estimate that only about 35% of the summary judgments granted are reversed on appeal. Those are terrible odds, but if you pay attention and do the best job possible, you improve your chances enormously.

Sharon J. Arkin Sharon J. Arkin

Sharon J. Arkin is the principal of The Arkin Law Firm. She has been certified by the California State Bar, Board of Legal Specialization as an appellate specialist since 2001. In 2011 Ms. Arkin received the CLAY award from California Lawyer magazine as an Appellate Attorney of the Year and in 2012 was named one of the Top 50 Women Attorneys in Southern California by Los Angeles Magazine. E-mail: sarkin@arkinlawfirm.com.

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