You've just returned from lunch. Sitting on the top of your desk is a thick envelope from opposing counsel. You take a deep breath, and lo and behold, it's a state court motion for summary judgment.
This article is reprinted with permission from the Feb. 15, 2013 edition of The Recorder
by Robert F. Kane
You quickly put it aside. Later in the afternoon, you take a deep breath and decide to look at the motion, but before you do, repeat the following mantra five times: "This is an opportunity, not a burden."
Summary judgment motions must be served at least 75 days before the hearing and you need to file your opposition 14 days before the hearing. Although you get more time to respond to a motion for summary judgment, don't wait. It's probably a good idea to look at Code of Civil Procedure §437(c), which governs such motions.
If after reading the moving papers you believe you need additional time for further discovery or to amend your pleadings, request that opposing counsel stipulate to your request. If a stipulation cannot be obtained, you will need to move for a continuance or for leave to amend. If you decide to file such a motion, make sure to set forth the facts and reasons for the need for relief and why you failed to act earlier. You should file such a motion on order shortening time, so in the event it is denied, you still have time to respond to the summary judgment motion.
A summary judgment motion affords counsel an opportunity to fill in any holes in the proof you will need for trial. In addition, opposing counsel has provided you with legal research on the elements and defenses for each cause of action. Also, based on the moving papers, you may decide that the facts are not in dispute and that you should file a cross-motion for summary judgment. If you decide to do so, remember you need to comply with all applicable time and notice requirements.
The moving party has the initial burden of producing evidence or lack thereof to establish its claim for summary judgment. Once such proof is made, the burden shifts to you to make a prima facie showing of a triable issue of one or more material facts as to each matter at issue. To establish a triable issue of fact, you must produce admissible evidence that contradicts evidence produced by the moving party or show that admissible evidence gives rise to reasonable inferences that raise an issue of fact.
Keep in mind that summary judgment is a drastic procedure that courts address with caution, so it does not become a substitute for trial. The court merely determines whether triable issues of material fact exist; it does not decide the merits of the issues, weigh the evidence, or evaluate credibility.
The points and authorities should contain the legal authority for what opposing counsel perceives as the gaps in proof. You need to determine whether you and opposing counsel have a disagreement on what the applicable law is or whether opposing counsel is claiming that you lack sufficient evidence to establish or overcome a cause of action or affirmative defense. Read any cases with which you are unfamiliar. Reread cases opposing counsel believes are controlling. Check to see if they are still good law. If good law, determine if they can they be distinguished by subsequent cases, and if not, determine if they can be factually distinguishable from the facts in your case. Even if a case stands for the proposition claimed by your opposing counsel, can you use it to support your position?
Once you determine the nature of opposing counsel's claim, look at the separate statement. You must respond to each claimed undisputed fact. Be sure to request an electronic version of opposing counsel's separate statement as you will need to include both the moving party's statement and your response in a single document. You must not only include your response to the moving party's facts, but if disputed, the basis upon which you dispute them.
Determine from the statement what facts you dispute and what additional facts need to be included in your response. With regard to the facts you dispute, has opposing counsel supported them by admissible evidence? If not, you will need to prepare objections to all or parts of the evidence relied upon by the moving party. Set forth your objections in a separate pleading numbering each specific objection.
If you dispute a fact or want to allege new facts, you will need to prepare your own admissible evidence to support your position or show how the evidence presented by the moving party can reasonably support a different inference. Declarations will need to be drafted and evidentiary foundations laid for any documents and you may need to have declarations from experts. Be sure that your declarations are consistent with prior discovery responses or explain why there is a discrepancy.
When writing your opposition to the memorandum of points and authorities, remember judges do not have unlimited time to try to decipher your position. Write concisely and clearly using active (not passive) voice. Generally, try to keep your sentences under 25 words and limit your paragraphs to no more than five sentences. Use headings to delineate each separate argument. Try to have someone proofread your work, but at a minimum, spell check it before filing and make sure the cases you cited have not been overruled.
Judges in state court are still reluctant to grant summary judgment. Many years ago, one revered law and motion judge had a rule that if the moving papers exceeded a certain thickness, a triable issue of fact had to exist that would result in the denial of the motion. You no longer can rely on such "bright-line" rules, particularly as summary judgment motions are generally combined with a request to summarily adjudicate particular claims, defenses or punitive damages. Thus, make sure you address all issues raised by the motions that you desire to pursue.
With most state courts using a tentative ruling system, make sure you get the tentative ruling and if you disagree with it, be sure to preserve your right to oral argument. Judges miss points, particularly as they are faced with long calendars and depleted staffs.
In oral argument, make sure you address the points raised in the tentative ruling and any issues you believe the court did not address. Time is precious during oral argument as the court has many other cases on its calendar. Get to the important points immediately, respond to the court's questions; do not deflect them. Remember a judge's question is an opportunity to see what the court considers important. If there are any cases that were not cited in the opposition or issues that were not raised, be sure to raise them. Also this is your opportunity to respond to any matters raised in the moving party's reply.
If you are plaintiffs counsel and you succeed in having summary judgment denied, the settlement value of your case likely will go up as the other side knows that the matter will need to be determined in trial. If you lose, you still may be able to salvage something (don't overlook possibility of appeal). Worst-case scenario, you've saved yourself from wasting further time on the case.
So look at summary judgment as an opportunity. Don't waste it.
Robert F. Kane is a San Francisco attorney engaged in the general practice of law and is the co-author of California Pretrial Practice and Forms. He teaches legal writing and research and moot court as an adjunct professor at UC Hastings College of the Law.