The Law Offices of Keller, Price & Moorhead

Summary Judgment

Summary Judgment motion cannot be reconsidered in the absence of new facts or a change in law unless “invited” by court.

In Le Francois v. Goel (2005) 35 Cal.4th 1094, 29 Cal.Rptr.3d 249, the California Supreme Court resolved the question about reconsideration of failed motions for summary judgment. Code of Civil Procedure Section 437c(f)(2) prohibits a renewal of a MSJ unless the moving party can establish newly discovered different facts or a change in law. While a moving party cannot formally file a motion to reconsider, or file a second MSJ, in contravention of this provision, the party can informally request the court to reconsider its ruling. If the court agrees, it can schedule a hearing and invite briefing on its own motion and reverse its prior decision under its inherent power to correct or modify a previous order.

Second motion for summary judgment which was based on no new facts or change in law was improperly granted.

In Schachter vs. Citigroup, Inc. (2005) 126 Cal.App.4th 726, 23 Cal.Rptr.3d 920, the court of appeal vacated the granting of defendant's second motion for summary judgment. The defendant brought the second motion citing a favorable superior court judgment that had no precedential value. The court of appeal held that Code of Civil Procedure Section 437c(f)(2) specifically prohibits a renewed summary judgment motion that lacks newly discovered facts or circumstances or a change of law. This decision acknowledges the court's inherent power to correct its own rulings and even to invite a party to bring a new motion despite the limiting language in this statute. However, the court of appeal chose to put form over substance by vacating the granting of the second motion here because the defendant's renewed motion was not “invited” by the court. See Abassi vs. Welke (2004) 118 Cal.App.4th 1353, 14 Cal.Rptr.3d 336.

A court cannot consider a motion for summary judgment without first ruling on evidentiary objections.

In Vineyard D. Springs Estates. LLC vs. Superior Court (2004) 120 Cal.App.4th 633, 15 Cal.Rptr.3d 587, Defendant moved for summary judgment in a third party assault case. The defendant owned a shopping center parking lot where the plaintiff had been assaulted and robbed. Defendant’s motion was based primarily upon the assertion that the defendant had no knowledge of prior, similar crimes occurring at the shopping center. Plaintiff opposed the motion initially with a printout of a summary of reported criminal acts at the shopping center, and then later added a declaration of the “administrative analyst” whose job included compiling statistical information from the police department records in an attempt to authenticate the printout. The defendant filed specific objections to the plaintiff’s evidence but the trial court failed to rule on the objections in denying the motion. The Court of Appeal ordered that the trial court rule on the evidentiary objections and then reconsider its ruling on the motion for summary judgment.

Witness declaration executed outside of California is inadmissible in summary judgment proceeding unless it invokes California law.

In Kulshrestha vs. First Union Commercial Corp. (2004) 33 Cal.4th 601, 15 Cal.Rptr.3d 793, plaintiff opposed a summary judgment motion by filing a declaration under penalty of perjury that showed it was signed in another state. The declaration did not make any reference to California’s “laws”. The trial court excluded the evidence and the summary judgment was granted. Plaintiff argued that the declaration substantially complied with C.C.P. §2015.5. The California Supreme Court held that a declaration executed outside of the State of California must include the phrase that the declaration is made “under the laws of the State of California”.

A trial court can reconsider its rulings on a motion for summary judgment at any time prior to final judgment.

In Abassi vs. Welke (2004) 118 Cal.App.4th 1353, 14 Cal.Rptr.3d 336, the trial court in a complex case invited a party to renew its motion for summary judgment which the court had denied two years earlier. The court felt, given the resolution of many issues in the case, that a reassessment of the motion for summary judgment was warranted as a means to determining additional issues before trial. The adverse party protested that the motion for summary judgment could not be reopened or be reconsidered given that C.C.P. § 1008 limits motions for reconsideration and renewal by requiring the presentation of new and different facts from the first motion. The court of appeal disagreed, holding that C.C.P. §1008 did not restrict the court’s inherent authority to review its prior rulings.

Trial court required to continue trial date to allow cross defendant to file motion for summary judgment when cross defendant brought into case within 6 months of trial.

In Polibrid Coatings, Inc. v. Superior Court (2003) 112 Cal.App.4th 920, 6 Cal.Rptr.3rd 7, cross defendant Polibrid was brought into the case after a trial date had been set. After conducting a preliminary investigation Polibrid sought a continuance of the trial so that a motion for summary judgment could be timely heard. Recent changes to the Notice requirements of CCP section 437c mandate a minimum of 75 days notice before the hearing and that the hearing be held more than 30 days before trial. The trial court denied the request for a continuance citing “Fast Track” rules that require the case be tried within 2 years of filing. Following a writ the Court of Appeal ordered that the trial date be continued as state rules must give way to the statutory right to bring a motion for summary judgment.

Notice of hearing of summary judgment may not be shortened by the Court.

In McMahon vs. Superior Court (2003) 106 Cal.App.4th 112, 130 Cal.Rptr.2d 407, the trial court issued an order establishing various dates and deadlines for pretrial matters including setting a date for summary judgment and providing for 21 days notice of any such motions. Plaintiff challenged the trial court’s order by petition for writ of mandate. The Appellate Court granted the writ, finding that the trial court had no discretion to shorten the 75 days notice required by C.C.P. §437c.

Recent amendments to C.C.P. Section 437c will go into effect January 3, 2003.

Currently C.C.P. §437c requires the giving of 28 days notice for motions for summary judgment. Pursuant to recent amendments the notice will be extended to 75 days beginning next year. Additionally, under amended C.C.P. §437(c) a party opposing summary judgment may more easily obtain a postponement of the hearing if it can demonstrate that its discovery has not yet been completed. The requirement that summary judgment motions be heard not less than 30 days before trial has not been changed. The impact of these two changes will be to greatly narrow the window during which a motion for summary judgment can be filed. Very often discovery is not completed until 2-3 months before trial yet moving parties will now be required to file their motions approximately 4 months before the trial date.

Summary Judgment may not be granted where the Court considered evidence first submitted by the moving party with its reply to the opposition.

In San Diego Watercrafts, Inc. vs. Wells Fargo Bank N.A. (2002) 102 Cal.App.4th 308, 125 Cal.Rptr. 499, the Fourth District Court of Appeal reversed the grating of a motion for summary judgment based upon the trial court's reliance of evidence first submitted by the moving party in its reply to the opposition. C.C.P. §437c requires moving party to file a separate statement of undisputed material facts with the initial moving papers. A number of Appellate decisions have interpreted this Section to absolutely prohibit the consideration of evidence not referred in the separate statement [United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 337, 282 Cal.Rptr. 368. Conversely, in the case of Kulsea v. Castleberry (1996) 47 Cal.App.4th 103, 54 Cal.Rptr.2d 699, the Appellate Court held that the trial court was required to consider "all" evidence in ruling upon the motion, not just evidence referred to in the separate statement.

In this case the Court attempted to moderate this conflict by rejecting the absolute prohibition on considering evidence not in the separate statement but to allow such evidence to be considered if it is clearly raised and referred to in the moving papers. Submitting evidence by way of reply to the opposition does not comply with due process as if does not give the opposing party a fair opportunity to respond.

California Supreme Court clarifies California summary judgment law and endorses a liberalized summary judgment procedure.

In the landmark case of Aguilar v. Atlantic Richfield Company (2001) 25 Cal.4th 826, 107 Cal. Rptr.2d. 841, the California Supreme Court granted a review in an anti-trust action for unlawful conspiracy wherein both the plaintiffs and defendants had moved for summary judgment in the trial court. The Court undertook a lengthy and exhaustive analysis on the changes made by the California Legislature in C.C.P. § 437c in 1992 and 1993 and of federal summary judgment procedure in order to resolve an ongoing debate within the Appellate Courts concerning the burden and adequacy of proof necessary to prevail on a motion for summary judgment.

While the Court did not adopt the minority federal approach which essentially requires only that the defendant persuade the Court that the plaintiff cannot prevail, the California Supreme Court did liberalize the standards under which a summary judgment motion should be reviewed to the extent that it should be much easier for a defendant to obtain a summary judgment than had been before this ruling.

Briefly, a defendant no longer need conclusively negate an element of the plaintiff's cause of action in order to prevail. All that defendant need do is show that one or more elements of the plaintiff's cause of action cannot be established by the plaintiff. For example, if plaintiff has the burden to prove "X" at time of trial, in order to prevail on a summary judgment the defendant no longer need prove "not X". The defendant can prevail by establishing through evidence that the plaintiff does not possess and cannot reasonably obtain the needed evidence in order to sustain the plaintiff's burden of proof. While a defendant will not prevail by arguing that the plaintiff cannot obtain evidence, the defendant may prevail by presenting evidence through admissions by the plaintiff following extensive discovery to the effect that the plaintiff has discovered nothing.

Testimony from a related criminal prosecution may be excluded as inadmissible hearsay when offered to support a motion for summary judgment.

In L & B Real Estate v. Superior Court (1998) 67 Cal.App.4th 1342, 79 Cal.Rptr.2d 759, plaintiff's daughter was killed at defendant's apartment building in a drug purchase/attempted robbery gone awry. On motion for summary judgment, the defendant-landlord offered testimony from one of the defendants in the criminal prosecution that plaintiff's daughter had been a co-conspirator/active participant in the criminal endeavor, and argued that plaintiff's wrongful death action was barred by Civil Code § 847 (which provides that the premises owner is not liable to any person for any death that occurs upon the property during the course of a robbery).

Plaintiff offered no evidence in opposition to defendant's motion for summary judgment. Instead, she objected to the transcript of the testimony from the criminal trial, arguing it did not meet the requirements of Evidence Code § 1292 which provides: "Evidence of former testimony is not made inadmissible by the hearsay rule if: (1) the declarant is unavailable as a witness, (2) the former testimony is offered in a civil action, and (3) the issue is such that the party to the action or proceeding in which the former testimony was given had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which the party against whom the testimony is offered has at the hearing."

In denying the defendant's motion for summary judgment, the court sustained plaintiff's objection to the former testimony under § 1292, which created a triable issue of fact as to whether plaintiff's daughter was on the premises during the robbery.