Opposing summary-judgment motions

Getting over the hurdle of Motion for Summary Judgment

2015 December

One of the most dreaded documents to find in the mail is a Motion for Summary Judgment. The fear is not only the fact that it is a dispositive motion, but also that filing an opposition to a summary judgment motion is extremely time consuming and can become a technical nightmare. Over the past several years, I estimate that I have prepared at least forty oppositions to summary-judgment motions. Through trial and error, and lots of very long nights, I believe that I have determined the best way to approach this task in a way that simplifies the lives of not only the attorneys writing the opposition, but also the staff members trying to prepare the opposition documents for filing.

Read and review a summary-judgment motion immediately

On the day you receive the motion, read it. Do not put it aside and try to deal with it later because you think you have so much time before your opposition is due. If you do not read the motion and understand the issues it raises, you will be handicapped in properly opposing it down the road. Under section 437c of the Code of Civil Procedure, you do have the luxury of time to prepare your opposition; however, you must use this time wisely and determine if there are depositions that need to be taken, discovery that needs to be served, and experts that need to be retained. If you wait and read the papers a week or two before your opposition is due, it is highly unlikely that you will be able to obtain all the information you need to successfully oppose the motion. Read it, and read it closely as soon as you receive the motion.

Know the law and how it applies to each of defendant’s arguments

By the time you receive a summary-judgment motion, you will likely already have a good understanding of the legal issues involved in your case. Your first step, however, should be to read defendant’s legal argument in the memorandum of points and authorities very carefully, since sometimes a defendant’s interpretation of the law differs from your interpretation. Knowing and understanding the law that applies to your case is absolutely crucial, and you must know it at the outset before you do anything else. You can usually make your facts conform to the law; you cannot make the law conform to your facts. If defendants rely on certain cases, you must read those cases and see if they support defendant’s position. If they do, you must figure out a way to distinguish that case law or to create a triable issue of fact. If they do not support defendant’s position, be prepared to distinguish those cases in your brief and show the court how the cases are not applicable to the facts of your case.

Make sure you understand each of the arguments being raised by the defendant. You sometimes have to review the motion very carefully to really determine what the argument is, but filter through all the string cites and the verbiage to the one or two sentences that actually matter. That is the argument, and that is what you must counter. You can only do this if you know the law on that issue, the cases that support your position, and how to distinguish the cases that do not support your position.

Do not assume that a defendant is making an argument that is not clearly stated. Defendants very often forget to argue causation in the summary-judgment motion but almost inevitably raise it in the reply. When this happens, I sometimes drop a footnote in the opposition brief stating, “Defendant has not raised the issue of causation and therefore this issue is not before the court.” Most judges will follow the law and hold a defendant to the issues raised in the motion and not consider anything raised for the first time in a reply.

Also, do not forget that defendants have a burden and are not entitled to summary judgment simply because they filed a motion. Hold defendants to section 473c’s requirements that they have the initial burden of proof and that they failed to shift the burden to you. Section 473c requires the defendant to show that one or more elements of a cause of action cannot be established or that there is a complete defense to the cause of action. Only if defendant meets this standard does the burden shift to you to show that there are triable issues of material fact. We have been successful on many occasions with this argument. For example, if a defendant includes a section on causation and simply says that plaintiff cannot establish causation, defendant has not negated that element of the claim. When a defendant submits a weak separate statement and a weak brief, you should use section 473c’s direct language and argue that defendant has not even met its initial burden and therefore is not entitled to summary judgment.

Review each fact set forth in defendant’s statement of undisputed material facts

After you have a clear understanding of defendant’s argument and the law in your favor and against you, then very carefully read defendant’s separate statement. Most of the statements are going to be harmless. If they are undisputed, then say they are undisputed, or at least say “undisputed for purposes of this motion only.” There is no need to waste your time trying to dispute a fact that should be admitted or that is not material. When you are reading through the separate statement, you must identify the specific items that, if undisputed, will entitle defendant to summary judgment. Typically, there are only a few of these.

We recently opposed a very difficult summary-judgment motion with numerous issues, but once we dissected the separate statement, the defendant’s entire case rested on three or four “undisputed” facts. We were able to show that these facts were disputed, and we settled the case for eight figures before the hearing. You must pull out those statements by the defendant that are crucial and, if undisputed, will end your case. This is where your attention needs to be, and this is what will determine victory. You must take some time to review the separate statement and identify those items that absolutely must be contested, and then you need to focus your efforts on those facts.

Conduct discovery geared to the crucial facts in defendant’s separate statement

Once you determine the facts that will be determinative to the motion, you must make sure you have the evidence to dispute defendant’s evidence. We have many cases in which a defendant argues that they exercised no control over another defendant. You must have specific facts to oppose such a statement, and you can only get those facts through a deposition. Notice the deposition of the person who gave a declaration in support of defendant’s motion on this issue and ask very specific questions designed to create a fact issue. Notice the deposition of the individual over whom they argue they have no control and, again, ask very specific questions designed to create a fact issue. You know the law thoroughly by now, and you know what factors will support your position; your job is to get admissions from witnesses to use in your opposition to defendant’s separate statement. Ask clear and concise questions that you will point out to the court in your opposition, and push to get the answer you want. If you think you need a document in defendant’s possession, or they have not produced a complete document, immediately serve a request for production so that you have time to receive it before your opposition is due.

Do not forget about section 437c, subdivision (h)

If a defendant refuses to produce documents or witnesses for depositions, you can oppose the summary-judgment motion by submitting your declaration and showing that facts essential to justify your opposition may exist but cannot for reasons stated be presented to the court. The key is that you must state in your declaration the steps you took to get this information and why you were unable to obtain it. If you simply wait too late to notice depositions or serve discovery, section 437c, subdivision (h) probably will not help you. If, however, you can show the court that you were diligent in seeking discovery and defendant did not produce it, then you have a fair shot under section 437c, subdivision (h) of either obtaining a continuance or, in some cases, having the court actually deny the summary judgment.

But it is dangerous to rely on section 437c, subdivision (h) exclusively, and therefore the section also permits an application for a continuance to be made ex parte. If you truly are unable to obtain the information you need to oppose the summary judgment motion, you should seek ex parte relief for a continuance under section 437c, subdivision (h) rather than wait and file an opposition based solely on that section.

Retain an expert immediately

Retain an expert immediately to draft a declaration to oppose the information set forth in defendants’ separate statement. If a defendant includes in its papers the declaration of an expert witness, then you will almost always have to counter with a declaration of your expert. Again, do not wait. You should retain an expert as soon as you receive the summary-judgment motion (if you have not already done so). An expert may have to conduct inspections or obtain additional documents, so the sooner you can retain him and get his input, the better.

You must also consider whether you need an expert’s declaration even if the defendant did not include one. If you have a good expert whose opinions may be helpful, then you should include the declaration with your opposition. Some people feel that a summary-judgment motion is all about “facts” and therefore expert opinion is not necessary. This is incorrect. Any opinion of an expert must be based on “facts,” and you must set out the specific facts on which the expert is basing his opinion.

In that manner, an expert is not only expressing an opinion but is also creating a triable issue of fact, assuming that his calculations differ from the defendant’s expert. We recently had a case where a chart was essential to the case. Defendants and all their witnesses, including an expert witness, stated that the chart should be interpreted a certain way that would not have required spinal immobilization. Our expert witness, because of his training, experience and qualifications, was able to offer an opinion that the correct interpretation of the chart did require spinal immobilization of our client, and we survived summary judgment.

Be very careful not to include only opinions in your expert declaration. Your experts must carefully set forth the facts on which they rely and attach to the declaration the documents that are relied on. You cannot simply attach a declaration of an expert stating an ultimate opinion; the defendant will certainly object to it and the objections will likely be sustained. Your expert’s declaration must set out the facts that the expert used to form the relevant opinions and must include any other information considered in arriving at the opinions. Defendants love to challenge the foundation of every expert opinion in a declaration; be very cognizant of this and make sure your expert has adequately set forth the bases for all opinions.

Draft your “additional facts” section before you do anything else

Section 437c, subdivision (b)(3) provides you with a golden opportunity to present your case in its best light to the court. You are required not only to respond to each of the defendant’s statements, but you must also “set forth plainly and concisely any other material facts that the opposing party contends are disputed.” In my opinion, this is the most important part of the opposition and the part you should draft first.

Set up your columns and number them, and then start including everything you want the court to know about your case and why your client is entitled to his day in court. Do not worry about what the defendant included or did not include; this is your separate statement and should include everything you want before the court (and, if eventually necessary, the Court of Appeal).

Of course, you must also provide support for each statement you make, but by now you should have depositions, discovery responses, and an expert declaration on which to rely. Set out your facts logically and chronologically, and as you go along, include the source on which you rely for that particular fact. If it is important to your case or something you want the court to know, include it in your separate statement.

When we oppose a summary-judgment motion, our section on “additional facts” is usually longer than the defendant’s statement of undisputed facts. This puts enormous pressure on the defendant to respond to actual evidence, something they are usually not prepared to do. I strongly believe that your “additional facts” section is the key to success. Once you understand the law, you know the facts you have to counter, and you have your evidence ready, draft this section of the response in opposition to defendant’s separate statement.

Responding to defendant’s separate statement

Once you have completed your “additional facts” section, you are in good shape to respond to defendant’s separate statement. Go directly to the statements that you originally identified as key to the case and respond to those first. You should be able to copy-and-paste from your “additional facts” section because the information is already included there. Then, respond to all the other separate statement items. Once you have finished, go back through the separate statement and make sure that your opposition column does actually contradict and dispute the moving party’s column. The court should be able to read defendant’s fact #3 and then look over to your column and find the evidence that counters fact #3. If you make the court go looking for it, you will likely not prevail. Keep reviewing the key facts and make sure that the evidence you put in your column will contradict that fact and can sustain any objection by defendant.

Write the brief

Finally, after you have completed the “additional facts” section of the separate statement and you have responded to defendant’s separate statement, then you are ready to write your memorandum of points and authorities in opposition to the motion. You are limited in pages so you must select the most important facts from your separate statement to include in your statement of facts. Assume that the court knows the law and understands the legal standard for a summary judgment motion, so do not waste two or three pages with string cites on this issue.

It is, however, sometimes a good idea to “remind” the court of a few things. I always like to point out that declarations of the moving party are strictly construed; those of the opposing party are liberally construed; and any doubts as to whether summary judgment should be granted must be resolved in favor of the opposing party. (J.H. v. Los Angeles Unified School Dist. (2010) 183 Cal.App.4th 123, 139.) In addition, the court must accept as true the facts in the evidence of the opposing party and the reasonable inferences that can be drawn from them. (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 67.)

I also prefer to follow the general outline used by the defendant in its summary judgment motion. If the court is reading the briefs, then he will want to see how you addressed each argument and does not want to have to search for it. However, you do not have to and should not keep the same headers or topic sentences used by defendant. For example, if defendant’s heading is “Defendant Was Not in the Course and Scope of His Employment,” your heading will be “There Are Triable Issues of Material Fact as to Whether Defendant Was in the Course and Scope of His Employment.” You are still following the outline set in defendant’s motion, but your headings and subheadings present your argument to the court.

Make sure your opposition is filed in the proper format

Even after all this hard work has been completed, your opposition is not ready to file until it is in the proper format. Remember that you must include your declaration stating the deposition excerpts attached are true and correct copies and you must include the court reporter’s certification for each deposition. Your citations in your separate statement must reflect the page number and the line number from deposition excerpts. When you attach the deposition excerpts to your declaration, you must highlight those excerpts or otherwise mark them so that they can be readily reviewed by the court. If you fail to do any of these things, it is very likely that the court will send your opposition back to you to be “fixed” and delay your hearing date.

A summary-judgment motion is never pleasant to oppose. In California, however, the opposing party is provided a fair opportunity to obtain the evidence necessary to develop the triable issues of fact. You must be prepared to take advantage of this time and use it wisely to obtain the evidence you need to successfully oppose the motion. Completing the “additional facts” section of the separate statement, then the response to the defendant’s separate statement, and then the memorandum of points and authorities is, in my opinion, the most effective method of opposing a summary-judgment motion.