CBJ - March 2012 #03. To Summarily Adjudicate or Not Adjudicate: The Recent Amendments to Section 437c.

Author:By Heather Rosing and Bryan Vess

California Bar Journal


CBJ - March 2012 #03.

To Summarily Adjudicate or Not Adjudicate: The Recent Amendments to Section 437c

The California LawyerMarch 2012To Summarily Adjudicate or Not Adjudicate: The Recent Amendments to Section 437cBy Heather Rosing and Bryan VessPreface

Heather Rosing is a certified legal malpractice specialist and shareholder with Klinedinst PC, where she chairs the Professional Liability Department. Bryan Vess is a San Diego solo practitioner in business law operating his own firm, BRYAN C. VESS APC.

Ms. Rosing and Mr. Vess provide different perspectives on the changes to the summary judgment statute - Ms. Rosing giving a defense counsel's view and Mr. Vess offers a plaintiffs' counsel's view.

Overview of Changes

California's statutory summary judgment and adjudication provisions are found in Code of Civil Procedure section 437c. The statute was amended by the State Legislature effective January 1, 2012. The changes are significant.

Prior to the amendment, a party could move for summary adjudication of (1) one or more causes of action, (2) affirmative defenses, (3) claims for damages, or (4) issues of duty. In reality, this mainly translated into summary adjudication motions on certain causes of action, on punitive damages, or on straightforward affirmative defenses such as the statute of limitations.

The purpose of allowing such motions under the statute is to expedite litigation and eliminate needless trials. PMC, Inc. v. Saban Entertainment, Inc. (1996) 45 Cal.App.4th 579, 590. However, despite the stated purpose of the statute, parties interested in having the court determine major issues that, if resolved, would not dispose of an entire cause of action or an entire affirmative defense, could not look at 437c for a mechanism for judicial resolution of the issue. Before the recent amendment, the only option to adjudicate issues was through a motion in limine.

Now, with the adoption of these changes to Section 437c, parties can move for summary adjudication of a legal issue or claim for damages(fn1) even if that issue does not completely dispose of a cause of action, an affirmative defense, or an issue of duty, according to specified procedures.

The amendments establish the following procedure:

(2) This motion may be brought only upon the stipulation of the parties whose claims or defenses are put at issue by the motion and a prior determination and order by the court that the motion will further the interests of judicial economy, by reducing the time to be consumed in trial, or significantly increase the ability of the parties to resolve the case by settlement. (3) Before a motion may be filed pursuant to this subdivision, the parties shall submit to the court a joint stipulation clearly setting forth the issue or issues to be adjudicated, with a declaration from each stipulating party demonstrating that a ruling on the motion will further the interests of judicial economy by reducing the time to be consumed in trial or significantly increasing the probability of settlement. Within 15 days of the court's receipt of the stipulation and declarations, unless the court has good cause for extending the time in which to make the determination, the court shall notify the submitting parties as to whether the motion may be filed. If the court elects not to allow the filing of the motion, the stipulating parties may request, and upon that request the court shall conduct, an informal conference with the stipulating parties to permit further evaluation of the proposed stipulation; but no further papers may be filed by the parties in support of the proposed motion.

(4) Any motion for summary adjudication brought under this subdivision shall contain the following language, or its substantial equivalent, in the notice of motion: "This motion is made pursuant to subdivision (s) of Section 437c of the Code of Civil Procedure. The parties to this motion stipulate that the court shall hear the motion and that the...

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