Part 1 of this article appeared in the May - June issue of the Sacramento Lawyer. This installment picks up where the first one left off.

My usual disclaimer applies. Nothing herein is to be considered a local rule of court, an unwritten court rule, or a court policy. What follows are simply the views of one judge, who reserves the right to change his mind.

The law is clear. The papers supporting a motion "shall include a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence. The failure to comply with this requirement of a separate statement may in the court's discretion constitute a sufficient ground for denial of the motion." Code of Civil Procedure § 437c(b) (emphasis added). As the statute states, the court has the discretion to deny any motion for summary judgment or adjudication that does not include the required separate statement. Blue Cross of So. Calif. (1990) 222 Cal.App.3d 660, 671. Obviously, a motion that presents a pure question of law probably will not be denied because of the lack of a separate statement. However, cases presenting questions of fact face the real risk of denial if the required statement is not included. Counsel cannot rely on his/her memorandum of points and authorities to satisfy the separate statement requirement, since such document does not constitute a separate statement. Blackman v. Burrows (1987) 193 Cal.App. 889, 894. Similarly, counsel should not treat the separate statement as a memorandum of points and authorities by using it as forum to argue the case.

Counsel must make sure that the "reference to supporting evidence" requirement is met. This means that the separate statement must specifically cite the evidence that supports the factual statement being made. A reference such as "see evidence previously produced" in some prior motion is insufficient. Artiglio v. General Electric Co. (1988) 61 Cal.App.4th 830, 841-842; Fleet v. CBS Inc. (1996) 50 Cal.App.4th 1911, 1916, fn. 3. Some examples of an improper "reference to supporting evidence" often seen include these: "See exhibit 2" or "see Plaintiff's deposition" or "see exhibits to" [a prior motion].

The separate statement is probably the most important part of a Motion for Summary Judgment or an Opposition thereto. This is the document to which the Court gives immediate attention. The Court uses the separate statement as a roadmap of counsel's position on the issues raised by the motion. The Court will figuratively lay the moving and opposing separate statements side by side to determine if there is any dispute as to a material fact. If there is not, in most cases, the Court need go no further and, assuming the case is not controlled by an issue of law, will grant the motion. If the Court finds a dispute exists, it can zero in on which specific material facts are disputed. The Court will then examine the evidence that purportedly supports such party's position, and determine whether such evidence exists and is admissible. Only after this analysis is complete does the Court review the remainder of the papers.

While a party may join in a motion for summary judgment, provided the 75-day notice period is met, such joinder will not be fruitful unless such joining party prepares, files, and serves its own separate statement. Frazee v. Seely (2002) 95 Cal.App.4th 627, 636 ("Each moving party shall support their motion for summary judgment with a separate statement." [Emphasis is the Court's.])

"The separate Statement of Undisputed Material Facts in support of a motion shall separately identify each cause of action, claim, issue of duty of affirmative defense, and each supporting material fact claimed to be without dispute . . . ." CRC, Rule 342(d). Rule 342 provides a template for the preparation of the separate statement. Counsel would be well advised to follow this template precisely. This Court, like many others, has denied motions for summary judgment solely on the ground that the separate statement failed to comply with the requirements of the rule.

It is astonishing how many times a summary judgment motion ends up being denied because of counsel's failure to read and apply the above two procedural requirements. One problem that occurs is the failure of counsel for the moving party to make sure that the separate statement is complete and contains reference to all of the evidence relied upon in the motion. The failure to include all necessary facts in the separate statement may lead to denial of motion. See Rio Linda Unified School Dist. v. Superior Court (1997) 52 Cal.App.4th 732, 740; but see San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308 (refusal to consider evidence not in the separate statement reviewed under an "abuse of discretion" standard).

Also, care must be taken to ensure that the separate statement contains all facts upon which an argument is going to be made in the memorandum of points and authorities. The Court may disregard an argument supporting Summary Judgment if the moving party has failed to state facts in the separate statement to support it. Federico v Superior Court (1997) 59 C.A.4th 1207.

It is not enough for the separate statement to merely refer to a document. The statement must specify the facts contained in the document that are claimed to be material to the issue being adjudicated. North Coast Business Park v. Nielson Construction Co. (1993) 17 Cal.App.4th 22, 30.

There is a divergence of opinion in the Courts of Appeal regarding the effect of failing to include all material facts relied upon in the separate statement. The Second District has held that the Court may freely ignore evidence not included in the separate statement noting that the "Golden Rule of Summary Adjudication" is that if it is not set forth in the separate statement, it does not exist. United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 337 (superseded by statute on other grounds).

The Fourth District (Division 3) has recast the "Golden Rule" into bronze. In San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, the Court criticized the holding in United Community Church because, in the Court's view, "the absolute prohibition on consideration of non-referenced evidence is unsupported by the statute." The Court held that while a trial court is not required to search the papers submitted to find evidence to support the party's position, its refusal to consider such evidence is reviewed under the "abuse of discretion" standard. According to the Fourth District, the trial court does not have absolute authority to refuse to consider evidence not included in the separate statement.

The San Diego Watercrafts Court criticized and declined to follow that portion of that Division's holding to the contrary in Kulesa v. Castleberry (1996) 47 Cal.App.4th 103, 112 (court has an obligation to consider all evidence presented, at least that pertaining to a plaintiff who is opposing a defense motion).The Court expressly declined to follow its prior ruling in Kulesa "because it misinterpreted the summary judgment statute." As a sidebar, it is interesting to note that the author of the San Diego Watercrafts opinion was the dissenter in Kulesa.

The Court of Appeal, Third Appellate District, has cited and relied upon San Diego Watercrafts. Fenn v. Sherriff (2003) 109 Cal.App.4th 1466, 1480-1481. Therefore, it must be assumed that the San Diego Watercrafts rule applies in this district.

Since the separate statement concerns only "material" facts, it is important to keep in mind what is material and what is not. In order to be considered "material" for purposes of a summary judgment proceeding, a fact must relate to some claim or defense at issue in the pleadings, and it must also be essential to the judgment in some way. Riverside County Community Facilities Dist. No. 87-1 v. Bainbridge 17 (1999) 77 Cal.App. 4th 644. If it does not, the fact is not material and a dispute concerning it is of no moment to the granting or denial of the motion.

If counsel is moving for summary adjudication, the issues to be adjudicated must be stated specifically in the notice of motion and repeated, verbatim, in the separate statement of undisputed material facts. Rule 342(b). This requirement is often ignored, leading to a denial of the motion on that ground. There are instances in which counsel properly prepares the notice of motion and sets forth the issues to be adjudicated, but for some reason counsel feels the need to recast and restate those issues in a different manner in the separate statement. The issues set forth in the notice of motion control. Further, if it is difficult for the Court to relate the facts in the separate statement to the issues set forth in the notice, the motion will be denied. The Court will not do counsels' work for them.

In preparing a separate statement counsel should set forth separately each matter that is being adjudicated. Counsel must bear in mind that the issue for which summary adjudication is sought should either completely dispose of a cause of action, an affirmative defense, an issue of duty, or an issue of punitive damages. See CCP § 437c(f)(1). Underneath each heading, counsel should set forth the alleged undisputed material facts that support the granting of the motion, together with reference to the supporting evidence. Rule 342(h). If the facts are the same for issue two as for issue one, counsel may refer to the facts or incorporate them by reference rather than repeating them. However, take care to avoid the trap for the unwary; do not include facts that are not necessary for the resolution of the particular issue.

The motion must be denied if the separate statement discloses there is a triable issue of material fact as to the matter that is sought to be adjudicated. Hence, counsel for moving party must take care to include only those facts that are truly material, i.e., necessary to support the claim being advanced. A common error in setting up a separate statement for a summary judgment/adjudication motion is to repeat all of the material facts under the heading for each cause of action. The Court is entitled to rely on counsel's view of what facts are material to the claim, and deny the motion if it finds a dispute as to any of the facts listed in the moving party's separate statement (or under applicable heading if a motion for summary adjudication). "If a triable issue is raised as to any of the facts in . . . [the] separate statement, the motion must be denied. Weil and Brown, Civil Procedure Before Trial, § 10:95.1. Drafting the separate statement in such a manner "effectively concedes the materiality of whatever facts are included." Id. The proper way to prepare such a motion is to include only those facts that are material and pertain to the issue where they are listed. One should not repeat the same facts for each heading unless they are truly material to the cause of action, issue of duty or punitive damages for which adjudication is sought.

There is little flexibility in the procedural requirements that are set forth in the summary judgment statute and as a result, the statute is unforgiving. The failure to comply with any one of its myriad requirements is likely to be fatal to offending party. Brantley v. Pisaro (1996) 42 Cal.App.4th 1591.

The requirement of a separate statement is also mandatory for the opposing party. "The opposition papers shall include a separate statement which responds to each of the material facts contended by the moving party to be undisputed, indicating whether the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts which the opposing party contends are disputed." Code of Civil Procedure § 437c(b).

Rule 342 also specifies exactly how a party opposing a summary judgment motion is to respond to the moving party's motion for summary judgment. An opposing party who contends that a fact set forth in the separate statement is disputed shall state, on the right side of the page directly opposite the fact in dispute, the nature of the dispute and describe the evidence that supports the position that the fact is controverted. That evidence shall be supported by citation to exhibit, title, and page, and line numbers in the evidence submitted. CRC, Rule 342(f).

Moving Party's motion is properly granted where plaintiff has failed to file a separate statement in opposition. Kaplan v. LaBarbera (1997) 58 Cal.App.4th 175, 179. But see Thatcher v. Lucky Stores, Inc. (2000) 79 Cal.App.4th 1081, 1086 (court may not grant motion without examining defendant's evidence in support); see also San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308 (refusal to consider evidence not in the separate statement reviewed under an "abuse of discretion" standard).

The party opposing the motion is not stuck with what the moving party asserts are material facts. Section 437c(b) authorizes the party opposing the motion to list additional material facts that the party contends are disputed. Hence, if the moving party omits a fact from his/her/its separate statement that the opposing party believes is material to the claim for which adjudication is sought, the opposing party may add such fact to his/her/its opposition separate statement. If the Court agrees that such fact is both material and disputed, the motion will be denied on that basis.

The next installment will cover the preparation of the memoranda of points and authorities supporting and opposing the motion.

July / August 2005