summary judgment and summary adjudication

Summary Judgment and Summary Judgment and Summary AdjudicationSummary Adjudication

LA 310LA 310

Motions for Summary Motions for Summary Judgment or Summary Judgment or Summary

AdjudicationAdjudication

CCP section 473(c); FRCP Rule 56CCP section 473(c); FRCP Rule 56

Defined: Motions made during civil Defined: Motions made during civil litigation to dispose of all or parts of a litigation to dispose of all or parts of a case without a trial when there is no case without a trial when there is no genuine issue as to the material facts of genuine issue as to the material facts of the case for a jury to decide and a party is the case for a jury to decide and a party is entitled to judgment as a matter of law.entitled to judgment as a matter of law.


AdjudicationAdjudicationThe purpose of Summary Judgment The purpose of Summary Judgment and Summary Adjudication Motions is and Summary Adjudication Motions is to provide courts with a mechanism to provide courts with a mechanism to cut through the parties pleadings to cut through the parties pleadings in order to determine whether, in order to determine whether, despite their allegations, trial is in despite their allegations, trial is in fact necessary to resolve their fact necessary to resolve their disputedispute


AdjudicationAdjudicationSummary Judgment -Summary Judgment -– Resolves the entire action before trial in Resolves the entire action before trial in

favor of one partyfavor of one party– Plaintiff’s case is dismissed because Plaintiff’s case is dismissed because

Cannot establish an element of the cause of Cannot establish an element of the cause of action action ororDefendant has a complete defense (i.e. Defendant has a complete defense (i.e. Statute of Limitations)Statute of Limitations)

– Defendant’s case is dismissed becauseDefendant’s case is dismissed becauseAll plaintiff’s allegations are trueAll plaintiff’s allegations are trueDefendant has no valid defensesDefendant has no valid defenses


AdjudicationAdjudicationSummary Adjudication (“Partial Summary Adjudication (“Partial Summary Judgment”) Summary Judgment”) – Available to dispose of one or more of Available to dispose of one or more of

the following:the following:A cause of actionA cause of actionAn affirmative defenseAn affirmative defenseA claim for punitive damagesA claim for punitive damagesAn issue of legal duty (fiduciary duty, An issue of legal duty (fiduciary duty, contractual duty, statutory duty)contractual duty, statutory duty)

– Eliminates parts, but not all, of a party’s Eliminates parts, but not all, of a party’s casecase


AdjudicationAdjudicationSummary Adjudication of IssuesSummary Adjudication of Issues– January 1, 2012 – CCP section 437c(s)(1)January 1, 2012 – CCP section 437c(s)(1)– Permits Summary Adjudication of single issue Permits Summary Adjudication of single issue

(that does not dispose of case) if the parties (that does not dispose of case) if the parties stipulate or agree to bringing the motionstipulate or agree to bringing the motion

– Examples:Examples:Issues which are important but not dispositiveIssues which are important but not dispositive

Types of damagesTypes of damages

– Federal procedure allows this type of motion Federal procedure allows this type of motion w/o stipulation of the partiesw/o stipulation of the parties


AdjudicationAdjudicationTest that Court applies:

“Is there a triable issue of a material fact for a court or jury to decide ?”

Note: Court does not “weigh” the evidenceCredibility of witnesses not

consideredNeed not meet burden of proof Only need to produce conflicting

evidence


AdjudicationAdjudicationWhen Summary Judgment or When Summary Judgment or Adjudication is successful:Adjudication is successful:– No admissible evidence to prove the No admissible evidence to prove the

facts the other side has pleadedfacts the other side has pleaded– Summary Judgment is most successful Summary Judgment is most successful

in simple casesin simple cases– Summary adjudication is useful to Summary adjudication is useful to

simplify case by eliminating causes of simplify case by eliminating causes of action, defenses, etc.action, defenses, etc.


AdjudicationAdjudicationPlaintiffs are generally not successful on MSJ Plaintiffs are generally not successful on MSJ or MSAor MSA– Because plaintiff must prove there is no dispute Because plaintiff must prove there is no dispute

as to all elements of his case and that there are as to all elements of his case and that there are no facts to support defendant’s defensesno facts to support defendant’s defenses

– Defendant merely needs to show that one Defendant merely needs to show that one element of plaintiffs cause of action cannot be element of plaintiffs cause of action cannot be provedproved

MSJ or MSA are generally not successful MSJ or MSA are generally not successful where the mental state or credibility of where the mental state or credibility of witnesses is at issuewitnesses is at issue

MSJ/MSA ProcedureMSJ/MSA Procedure

Timing for the MotionTiming for the Motion – when can you – when can you file?file?– Earliest date – 60 days after general Earliest date – 60 days after general

appearance of party against whom the appearance of party against whom the motion is mademotion is made

– Latest date – about 3 ½ months (105 days) Latest date – about 3 ½ months (105 days) before trialbefore trial

Motion must be heard 30 days prior to trial andMotion must be heard 30 days prior to trial and

Must give 75 days notice of the hearingMust give 75 days notice of the hearing

– Continuance of trial date extends time for Continuance of trial date extends time for motion (unlike discovery cut-off)motion (unlike discovery cut-off)


Content of the MotionContent of the Motion1.1. Notice of MotionNotice of Motion

2.2. Separate Statement of Undisputed Separate Statement of Undisputed Material Facts***Material Facts***

3.3. Memorandum of Points and AuthoritiesMemorandum of Points and Authorities

4.4. Evidence Evidence • DeclarationsDeclarations• Discovery responsesDiscovery responses• Judicial NoticeJudicial Notice

• Proof of ServiceProof of Service


Notice of MotionNotice of Motion– Similar in format to other NoticesSimilar in format to other Notices– 75 75 calendarcalendar days notice of hearing days notice of hearing– Notice must state if Motion for Summary Notice must state if Motion for Summary

Judgment, Motion for Summary Adjudication Judgment, Motion for Summary Adjudication or bothor both

If Notice is only for Motion for Summary If Notice is only for Motion for Summary Judgment court cannot grant Summary Judgment court cannot grant Summary AdjudicationAdjudication

– Specify the documents you are relying on to Specify the documents you are relying on to support the motionsupport the motion


Separate Statement of Undisputed Separate Statement of Undisputed Material FactsMaterial Facts– A pleading that specifies all material facts A pleading that specifies all material facts

that moving party contends are that moving party contends are undisputed and a citation to evidence to undisputed and a citation to evidence to support contentionsupport contention

– Material fact – important facts as opposed Material fact – important facts as opposed to immaterial facts that are not necessary to immaterial facts that are not necessary to the resolution of the issues in the caseto the resolution of the issues in the case

–


Evidence to Support MotionEvidence to Support Motion– Declarations fromDeclarations from

WitnessesWitnesses

Portions of depositons, interrogatory Portions of depositons, interrogatory answersanswers

Answers to Requests for AdmissionsAnswers to Requests for Admissions

Documentary evidenceDocumentary evidence

– Request for Judicial Notice of certain Request for Judicial Notice of certain factsfacts


Judicial NoticeJudicial Notice– An evidentiary procedure in which the judge An evidentiary procedure in which the judge

is ask to rule that certain facts are true and is ask to rule that certain facts are true and need not be proved by a party because the need not be proved by a party because the facts are beyond reasonable disputefacts are beyond reasonable dispute

– ExamplesExamplesLaws of the StateLaws of the State

Content of public records – court filesContent of public records – court files

Meaning of words and phrasesMeaning of words and phrases

Scientific basis of accepted scientific testsScientific basis of accepted scientific tests


Memorandum Points and AuthoritiesMemorandum Points and Authorities– Similar to other Points and AuthoritiesSimilar to other Points and Authorities– Cannot exceed 20 pages without prior Cannot exceed 20 pages without prior

court ordercourt order– If over 10 pages must have table of If over 10 pages must have table of

contents and table of authoritiescontents and table of authorities


Proof of Service of Motion and Proof of Service of Motion and Supporting DocumentsSupporting Documents– 75 calendar days notice (plus additional 75 calendar days notice (plus additional

days for method of service)days for method of service)– Must be served on all counselMust be served on all counsel


Opposition to MSJ/MSAOpposition to MSJ/MSA– Timing – filed and served at least 14 Timing – filed and served at least 14

calendar days prior to the hearingcalendar days prior to the hearing– Content of OppositionContent of Opposition

Separate Statement of Separate Statement of Disputed andDisputed and Undisputed FactsUndisputed Facts

Memorandum of Points and AuthoritiesMemorandum of Points and Authorities

Evidence in oppositionEvidence in opposition

Objections to evidence, if anyObjections to evidence, if any


Opposing Parties Separate Statement of Opposing Parties Separate Statement of Disputed and Undisputed FactsDisputed and Undisputed Facts– Must recite the moving party’s undisputed Must recite the moving party’s undisputed

facts and respond to each facts and respond to each – If moving party’s facts are disputed must cite If moving party’s facts are disputed must cite

to evidence that supports the positionto evidence that supports the position– May include other material facts that are in May include other material facts that are in

disputedispute– Responding party is entitled to electronic Responding party is entitled to electronic

copy of moving party’s Separate Statement copy of moving party’s Separate Statement *


Objections to EvidenceObjections to Evidence– If there are objections to moving party’s If there are objections to moving party’s

evidence must cite to the evidence and evidence must cite to the evidence and state the objectionsstate the objections

– Must include a proposed order for the Must include a proposed order for the court to rule on the objectionscourt to rule on the objections

– Specific format required by the Rules of Specific format required by the Rules of CourtCourt

Proposed Order on ObjectionsProposed Order on Objections


Reply to OppositionReply to Opposition– Filed 5 days prior to the hearingFiled 5 days prior to the hearing– Objections to responding party’s Objections to responding party’s

evidenceevidence– Further points and authorities with legal Further points and authorities with legal

argumentargument