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Opposing a motion for summary judgment in California

by Stan Burman

Opposing a motion for summary judgment in California is the topic of this blog post.

All documents opposing a motion for summary judgment in California must be served and filed at least fourteen (14) calendar days before the hearing and include a separate statement that responds to each of the material facts contended by the moving party to be undisputed. The separate statement must cite to the specific evidence that supports your contention that a particular fact is disputed.

This blog post discusses opposing a motion for summary judgment although many of the issues discussed here also apply to opposing a motion for summary judgment, or in the alternative, summary adjudication. The moving party must comply with the strict requirements imposed in California for granting summary judgment.

The party moving for summary judgment must wait until at least sixty (60) calendar days have passed since the general appearance of the other party, in other words 60 calendar days since the complaint has been filed, or the answer to the complaint has been filed.

The moving party must serve and file the motion and all supporting documents at least seventy five (75) calendar days before the hearing if the motion is served personally. However if the motion is served by mail an additional five (5) calendar days must be added to the notice period if the place of address is within the State of California.

I want to stress that the party opposing the motion for summary judgment is entitled to the full seventy (75) calendar day notice period, it cannot be shortened by any Court.  Where a notice of motion was mailed only seventy six days before the hearing that defect could not be remedied by a short continuance. The full notice period had to begin anew. See Robinson v. Woods (2008) 168 Cal.App.4th 1258, 1267.

If a party contends that they need additional time to conduct discovery in order to effectively oppose the motion for summary judgment section 437c states in pertinent part that, "(h) If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication or both that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due.

(i) If, after granting a continuance to allow specified additional discovery, the court determines that the party seeking summary judgment has unreasonably failed to allow the discovery to be conducted, the court shall grant a continuance to permit the discovery to go forward or deny the motion for summary judgment or summary adjudication."

The Court must allow all parties to present oral argument at the hearing on the motion for summary judgment. See Brannon v. Superior Court (Crippen) (2004) 114 Cal.App. 4th 1203, 1211.

While many motions for summary judgment are made not all of them are granted since the motion can only be granted when there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law.

And summary judgment is proper only if the affidavits in support of the motion, strictly construed, contain facts sufficient to entitle the moving party to judgment, and those of the opposing party, liberally construed, fail to show there is a material issue of fact. Thus, the party moving for summary judgment bears the burden of proof.

The moving party must demonstrate that under no hypothesis is there a material factual issue requiring a trial. That is because absent the proper circumstances for a motion for summary judgment or partial summary judgment, the parties to a lawsuit are entitled to a trial, either by the court or by jury.

And issue finding, rather than issue determination, is the pivot upon which summary judgment law turns.

California case law is well settled that any doubts regarding a Summary Judgment Motion must be resolved in favor of the opposing party. The declarations of the moving party are strictly construed, those of the opposing party are liberally construed, and doubts as to whether a summary judgment should be granted must be resolved in favor of the opposing party; the court focuses on issue finding, and it does not resolve issues of fact.

The facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences therefrom must be accepted as true.

The affidavits and declarations in opposition to a motion for summary judgment need only disclose the existence of a triable issue, they do not need to prove the opposition’s case.

Attorneys or parties in California who have been served with a motion for summary judgment and wish to file an opposition can click below to view a potion of a sample opposition to motion for summary judgment complete with a memorandum of points and authorities with citations to case law and statutory authority, a separate statement of undisputed material facts, and a proposed order in Word format sold by the author can use the link shown below.

Sample Opposition to Motion for Summary Judgment in California by Stan Burman on Scribd

 

Attorneys or parties in California who would like more information on a law and motion document collection containing over 70 sample documents for California including a sample opposition to a motion for summary judgment sold by the author can use the link shown below.

https://legaldocspro.myshopify.com/products/california-law-and-motion-document-collection

The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for sale.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit freeweeklylegalnewsletter.gr8.com/ for more information.  

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DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

 

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