Summary Judgment

• Author: Robert F. Kane/Donald G. Rez
• Pages: 371-432

Chapter 28

Summary Judgment

QUICK VIEW

Definitions: A motion for summary judgment (“MSJ”) requests the court to enter judgment for the moving party

on the grounds 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. A motion for summary adjudication requests the court to adjudicate one or more causes of

action, affirmative defenses, claims for punitive damages, or issues of duty.

Scope: General rules; advantages, disadvantages, and strategies; motions for summary adjudication; summary

judgment evidence; burdens of proof; motions for and opposition to summary judgment; hearing and order;

rehearing; appellate review.

Strategy and Tactics:

Both parties:

• Stick to material facts; don’t waste time and effort proving or refuting facts that are not material.

• Scrutinize all evidence for admissibility defects.

• Proffer just the pertinent excerpts from deposition transcripts, answers to interrogatories, and requests to admit.

• Check local rules and judge’s individual requirements for summary judgment motions.

• Move to strike inadmissible evidence proffered by the opposing party.

• Adhere to all time requirements.

Movant:

• Before deciding to move for summary judgment:

• Complete sufficient investigation and discovery to have a complete grasp of all material facts.

• Evaluate all evidence, pleadings, and substantive law governing claims and defenses.

• Identify which facts are material by determining the essential elements of each claim and defense

• Make sure material facts are incontrovertible, and law entitles moving party to judgment.

• Evaluate possibility and consequences of provoking a cross-motion.

• Support motion with admissible and incontrovertible MSJ evidence establishing the material facts.

• Proffer evidence that establishes the facts clearly.

• File required statement of undisputed facts and cogent and persuasive memorandum of points and authorities.

• Comply with all service and filing requirements.

California Pretrial Practice & Forms 28-2

Opponent:

• Scrutinize movant’s evidence, separate statement, and legal argument.

• Proffer admissible MSJ evidence controverting material facts movant asserted.

• File required separate statement of disputed and undisputed facts and opposing memorandum of points

and authorities.

• Adhere strictly to all time requirements.

• Move to strike inadmissible or non-MSJ evidence proffered by movant.

• If warranted, serve cross-motion for summary judgment, or motion for summary adjudication.

Statutes and Rules: CCP §437c; CRC 3.1350-3.1354.

Related Topics: Pleadings, Ch 13; Motion Practice, Ch 14; Attacking the Pleadings, Ch 15; Depositions, Ch 22;

Interrogatories, Ch 24; Ch 25, Requests for Admission.

Forms in Digital Access: See digital access for the following forms:

• Form 28:10 Notice of Motion for Summary Judgment or Summary Adjudication.

• Form 28:20 Memorandum of Points and Authorities in Support of Motion for Summary Judgment or

Summary Adjudication.

28-3 Summary Judgment

TABLE OF CONTENTS

I. OVERVIEW

A. BASIC POINTS

§28:01 Nature and Purpose

§28:02 Requirements for Summary Judgment

§28:03 Based on MSJ Evidence

§28:04 Any Party May Move for Summary Judgment

§28:05 Pleadings Limit Scope of Motion

§28:06 Unpleaded Theories in Complaint

§28:07 Unpleaded Affirmative Defenses

§28:08 Waiver of Failure to Plead

§28:09 Amending Pleadings

§28:10 When Prior Motion for Summary Adjudication Is Denied

§28:11 Conflicting Local Rules Preempted

§28:12 Motion Is Favored Remedy in First Amendment Cases

§28:13 SJ in Declaratory Relief Action

§28:14 SJ in Antitrust Actions

§28:15 Constitutionality

B. ADVANTAGES

§28:30 Saves Time, Effort, and Expense of Trial

§28:31 Gets You Organized for Trial

§28:32 Forces Opponent to Reveal Evidence and Theories

§28:33 Encourages Settlement

§28:34 Avoids Jury Prejudice

§28:35 Summary Adjudication Available

§28:36 Can Establish Law of Case

C. DISADVANTAGES

§28:50 Expensive and Time Consuming

§28:51 Consider the Judge

§28:52 Easier to Oppose

§28:53 Can Discourage Settlement

§28:54 May Boomerang

§28:55 Tips Your Hand

§28:56 Appeal Will Follow

D. STRATEGIES

§28:70 Revisit MSJ Throughout Pretrial Period

§28:71 Plan Discovery With Summary Judgment in Mind

§28:72 Know the Substantive Law

§28:73 Focus on Material Facts

§28:74 Make Clear and Simple

II. SUMMARY ADJUDICATION

A. BASES

§28:80 Bases for Summary Adjudication

§28:81 Cause of Action

§28:82 Declaratory Relief

§28:83 Affirmative Defenses

§28:84 Duty

§28:85 Punitive Damages

§28:86 No Summary Adjudication on Nonpunitive Damage Claim

§28:87 No Judgment Just as to Liability

§28:88 Advantages

§28:89 Disadvantages