When a party files a motion for summary judgment within the time limits set by California Code of Civil Procedure section 437c, the party has a right to have the motion heard before the start of trial. Calendaring issues are not a basis upon which the trial court can refuse to hear a timely filed motion.
In California state courts, there are two dispositive motions a party can file to terminate a case before trial: (1) motion for summary judgment; and (2) motion for summary adjudication. Pursuant to California Code of Civil Procedure section 437c(a)(1), “[a] party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” A motion for summary judgment is properly granted only when “all the papers submitted show that 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.” Cal. Civ. Proc. Code, § 437c, subd. (c).
For summary adjudication motions, unlike in federal court, where in principle any issue may be summarily adjudicated, in California court, only a cause of action, an affirmative defense, a claim for damages, or an issue of duty, may be summarily adjudicated. Although section 437c, subdivision (t) provides for an exception to the above general rule, it is very difficult to meet the requirements and therefore is rarely used.
Timing of a Motion for Summary Judgment in California
Under the California Code of Civil Procedure, there are several requirements that must be met regarding the timing of a motion for summary judgment. A motion for summary judgment or summary adjudication may be made any time after 60 days have elapsed since the general appearance of the party against whom it is directed, unless the court orders otherwise. See Cal. Civ. Proc. Code, § 437c, subd. (a)(1). Further, a motion for summary judgment in California must be heard no later than 30 days before the date of trial (unless the court orders otherwise for good cause shown). See id. § 437c, subd. (a)(3).
In addition to the above requirements, the party filing a motion for summary judgment must give at least 75 calendar days’ notice of the hearing on the motion for summary judgment. See id. § 437c, subd. (a)(2). There is no statutory procedure in California law for shortening the notice period for a motion for summary judgment.[1] As such, it is very important for litigants to track these deadlines. And sometimes, parties could get stuck in a tough spot because the Court’s calendar would not accommodate a summary judgment hearing even though it is filed in compliance with the Code. However, in a recent decision by the California Court of Appeal in Cole v. Superior Ct. of San Diego Cnty. (2022) 87 Cal.App.5th 84, the court specifically addressed issues on the deadline for filing a summary judgment motion and the trial court’s hearing on that motion, which is helpful to provide further guidance.
In Cole, defendants electronically filed and served a motion for summary judgment on October 5, 2022. When defendants’ counsel contacted the trial court to reserve a hearing date for the motion, the earliest date available was January 27, 2023. Counsel reserved the date, but because the trial in the matter was already set for January 20, 2023, the summary judgment motion would not take place until after the trial had already begun. Defendants filed an ex parte application to specially set an earlier hearing date for the motion for summary judgment, or in the alternative, to continue trial until after the motion could be heard. The trial court denied defendants’ ex parte request, stating that no earlier dates were available to hear the motion, noting that “[t]his is a 2019 case and the moving party waited until right before scheduled trial … to schedule a Motion for Summary Judgment.”
The California Court of Appeal granted a peremptory writ. Following the timing set forth in section 437c, the 75-day notice period for a hearing at least 30 days before trial, plus two court days for electronic service under section 1010.6 (a)(3), the defendant in Cole needed to file the motion for summary judgment at least 107 days before trial, which it did. Accordingly, the Court of Appeal found that “their motion filed on October 5 was timely, but with no time to spare.” Cole, 87 Cal.App.5th 84.
Because defendants’ motion for summary judgment was filed within the time limits set by section 437c, the Court of Appeal found that they had a right to have their motion heard before the start of trial. “A trial court may not refuse to hear a summary judgment filed within the time limits of [Code of Civil Procedure] section 437c. Local rules and practices may not be applied so as to prevent the filing and hearing of such a motion.” Id. Indeed, “the motion was timely filed, and calendaring issues are not a basis on which the trial court can refuse to hear a timely filed summary judgment motion, absent an indication that it was defective under section 437c.” Id. Based on these reasons, the Court of Appeal found that the trial court erred by refusing to set a hearing for the summary judgment motion before the start of trial and that to correct the error, peremptory writ in the first instance was appropriate.
Other Requirements for Summary Judgment and Summary Adjudication in California
The Golden Rule
When filing a motion for summary judgment or summary adjudication in California, timing issues are not the only consideration. Under California Code of Civil Procedure, the moving party must include a separate statement of undisputed material facts that lists all material facts that they contend are undisputed. Cal. Civ. Proc. Code § 437c, subd. (b)(1). Many California courts enforce what is denominated as the “Golden Rule” of summary judgment and summary adjudication: if it is not set forth in the separate statement, it does not exist. The corollary to the Golden Rule requires courts to accept as true everything in the separate statement that is not disputed by the party opposing the motion.
The separate statement must also include a reference to the supporting evidence for each individual material fact, such as affidavits or declarations, admissions, responses to interrogatories and deposition transcripts. The separate statement should include only material facts—those that can make a difference to the disposition of the motion. Cal. Rules of Ct., Rule 3.1350(f)(3) and Rule 3.1350(a)(2). The separate statement must separately identify:
- Each cause of action, claim for damages, issue of duty, or affirmative defense that tis the subject of the motion; and
- Each supporting material fact claimed to be without dispute with respect to the cause of action, claim for damages, issue of duty, or affirmative defense that is subject of the motion.
Cal. Rules of Ct., Rule 3.1350(d)(1).
A common misstep by attorneys unfamiliar with California procedure is including all facts from a brief’s “Background” section in the separate statement. If a fact that is not actually material is included in the separate statement—often because counsel has simply cut-and-pasted from the brief and not sufficiently considered the importance in California court of the separate statement—and such fact is disputed, the court can (and likely will) deny summary judgment on this ground.
Failure to comply with all separate statement requirements may be a sufficient basis to deny the dispositive motion.
Admissible Evidence
Unlike in federal practice, where trial courts may consider the evidence on summary judgment provided the submitting party demonstrates that it would be possible to present the evidence in admissible form at trial, see Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986), California requires that evidence submitted in support of a motion for summary judgment be admissible evidence.
To prevail on a motion for summary judgment or summary adjudication, the moving party must demonstrate, through admissible evidence, that an entire action or a cause of action has no merit, either because one or more elements of the cause of action cannot be established or because there is a complete defense to the action. Cal. Civ. Proc. Code § 437c, subd. (o)(2) & 437c subd. (p)(2). The respondent does not need to produce evidence to demonstrate that a triable issue of material fact exists, until the moving party meets this initial burden. Id. § 437c, subd. (d). Further, if the moving party claims that a fact is a material fact, but the only evidence cited is inadmissible, then that party has not met its burden.
Practice Tips
As discussed above, under California law, parties need to consider the unique procedural aspects for summary judgment motions and summary adjudication motions in examining the dispositive motion strategy. Unlike federal or most other states, parties in California are limited to either move on the entire case or individual causes of action. It is very difficult and rare to move on issues under section 437c, subdivision (t).
In drafting a summary judgment motion, tremendous organization and extreme attention to detail is required, especially for the separate statement. Also, in opposing summary judgment, arguably no document is more important than the separate statement. The trial court has discretion to refuse to consider evidence not referenced in the separate statement. San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 315-316. A powerful, concise separate statement will make it easy for the court to deny the motion.
For practitioners, it is important to be mindful of California’s unique approach to dispositive motions when drafting pleadings. Constructing pleadings with separate discrete claims is advisable; this leaves the option to move on one or more claims when it may be difficult to challenge the entire case. Further, as it is important to present evidence in support of or in opposition to the motion in admissible form, it is critical to gather all admissible evidence when taking discovery.
For further questions or comments on the content of this post, please email Matt Cave at [email protected] or Sara Borjigin at [email protected].
[1] The notice period is increased to 80 days if service by mail to an address within California; 85 days if the address is elsewhere in the U.S.; and 95 days if the address is outside the country. Cal. Civ. Proc. Code, § 437c, subd. (a)(2). For motions served by fax, express mail “or another method of delivery providing for overnight delivery,” the 75-day notice period is extended by only two court days. Id.
