Perhaps the most difficult work of a Law and Motion practice, both for the attorney and the court, is to deal with summary judgment and summary adjudication motions. By means of a multi-part article, many of the issues involved in making and opposing (as well as ruling on) these motions will be explored.

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.

Without obtaining a court order, one may not file such a motion any sooner than sixty days after the general appearance of the party against whom the motion is made. CCP section 437c(a). The outside limit is thirty days before trial. Without first obtaining a court order, neither a motion for summary judgment nor a motion for summary adjudication may be set for hearing later than thirty days before trial. CCP section 437c(a). If the trial date is continued, then a motion may be set for hearing at least thirty days before the new trial date. Soderberg v. McKinney (1996) 44 Cal.App.4th 1760, 1765, fn. 4 (30-day cutoff runs from any continued trial date).

The thirty-day cutoff period is not jurisdictional. Upon proper application and a showing of good cause, the Court may permit a later hearing date. Beroizz v. Wahl (2000) 84 Cal.App.4th 485, 493. However, the Court may not impose different time deadlines that conflict with those set forth in section 437c. First State Ins. Co. v. Superior Court (2000) 79 Cal.App.4th 324, 330-331. The Court must permit the motion to be filed if properly noticed for hearing before thirty-day cutoff. Wells Fargo Bank v. Superior Court (1988) 206 Cal.App.3d 918, 921. Thus, if a motion is filed and served in time to be set for hearing prior to the thirty-day cutoff, the fact that the court already has set its maximum of summary judgment motions is not a reason to deny the motion a hearing date. Any superior court policy or practice that improperly interferes with a party's right to move for summary judgment or summary adjudication of issues is invalid. Polibird Coatings, Inc. v. Superior Court (2003) 112 Cal.App.4th 920; Mediterranean Const. Co. v. State Farm Fire & Cas. Co. (1998) 66 Cal.App.4th 257.

A motion for summary judgment or adjudication, and all supporting evidence, memoranda, and other papers, must be filed and served at least seventy-five days prior to the hearing date. CCP section 437c(a). An additional five days must be added if the motion is served by mail; an additional two days must be added if served by fax (assuming agreement or court order) or sent by overnight delivery; an additional ten days must be added if served by mail out of state; and an additional twenty days must be added if served by mail out of the country. CCP section 437c(a). While the Court has discretion to adjust the starting and ending times that a motion may be set for hearing, it has no authority to modify this statutory notice period. Urshan v. Musicians' Credit Union (2004) 120 Cal. App. 4th 758; McMahon v. Superior Court (2003) 106 Cal.App.4th 112.

This seventy-five-day notice period also applies to a joinder in a motion filed by another party. Cf. Frazee v. Seely (2002) 95 Cal.App.4th 627 (22 days notice of joinder in motion not sufficient to satisfy the then 29-day notice requirement). Similarly, the Court lacks jurisdiction to grant summary judgment or summary adjudication to an opposing or non- moving party since such a ruling would violate the mandatory seventy-five-day notice period. Cf. Sierra Craft, Inc. v. Magnum Enterprises, Inc. (1998) 64 Cal.App.4th 1252.

With cases on a fast track, problems are sometime encountered in juggling the trial setting conference date, the seventy-five-day notice period, and the requirement that the motion be heard thirty days before trial. In Sacramento County the moving party must call the Law and Motion calendar clerks to reserve a date for the hearing of the motion (916-874-6828 for Department 53 and 916-874- 6827 for Department 54). To have time to read the papers, the Court limits complex motions (summary judgment, summary adjudication, motions for judgment on the pleadings, demurrers, and motions to strike (SLAPP)) to no more than six per day, with none being set on Wednesday.

If a motion for summary judgment or adjudication is not on file prior to the trial setting conference, the Court is unlikely to set a trial date based on counsel's intention to file a motion. The Court also will be unlikely to continue a trial date that is set solely because counsel wishes to file a motion for summary judgment. However, if counsel has an MSJ on file and has reserved a date with the law and motion department, the court will generally take that into account when setting the trial date. See Polibird Coatings, Inc. v. Superior Court (2003) 112 Cal.App.4th 920.

Opposition papers must be filed and served "not less than" 14 calendar days prior to the hearing. CCP section 537c(b). Any reply to the opposition must be filed and served "not less than" five days before the hearing. CCP section 437c(b). The time for filing opposing and reply memoranda is not extended by the provisions of CCP section 1005 and 1013(a). CCP section 437c. Note that the statute uses the phrase "not less than." This means that if the fourteenth or fifth day is a weekend or holiday, the memorandum must be filed and served on the court day preceding the holiday. If it is filed on the court day after the holiday, the document will be filed less than fourteen or five days before the hearing. The fourteen- or five-day time period is counted backward from the hearing date to meet the "not less than" standard.

The 2005 amendments to CCP section 1005 do not apply to motions for summary judgment. This is apt to cause confusion since MSJ time lines are expressed in "calendar" days while motions where section 1005 applies use "court" days (except for adding time for mailing, which reverts back to five calendar days).

It is extremely important that the memoranda be timely filed to avoid disastrous consequences. The Court has discretion to disregard papers filed late without prior approval. Hobson v. Raychem Corp. (1999) 73 Cal.App. 4th 614, 623, disapproved on other grounds by Colmenares v. Braeman Country Club (2003) 29 Cal.4th 1019, 1031, fn. 6. While the Court could consider a later-filed opposition memorandum by continuing the hearing to allow time for the filing of a reply memorandum, as a general rule Department 53 declines to do so. The reason for refusing to consider a late-filed opposition is that if late papers routinely resulted in a continuance, then papers would tend to be filed late as a means of obtaining a continuance without having to ask for one. Late-filed reply papers are often not considered if they are filed too late to be taken into account before the tentative ruling has to be prepared.

It is the wise attorney who files his/her reply papers as soon as possible, rather than waiting until 4:30 p.m. on the last day. The Court prefers to begin work on summary judgment motions at least three court days before the hearing, in order to have sufficient time to consider the papers and prepare the tentative ruling. If the reply is not there when the Court begins its review, it may not be given the attention that it may deserve. Reply papers filed 4:30 p.m. Monday for a motion that is scheduled to be heard on Thursday run the real risk of not being considered. In complicated matters, the reply memorandum is often helpful, and may make the difference in the outcome (provided it is filed in time for the judge to read and consider it).

The papers that are required to support the motion are set forth in CRC, Rule 342 ): (1) Notice of Motion, (2) Separate Statement of undisputed material facts in support of motion, (3) Memorandum of Points and Authorities in Support of Motion, (4) Evidence in Support of Motion, (5) Request for Judicial Notice (if applicable). This judge much prefers that the above documents be separately bound and filed. It is much easier to work with separate documents than it is to struggle with one thick ACCO-fastened document. With separate documents the judge can have the separate statement and evidence opened simultaneously, making it much easier to view the evidence that is being relied upon. Also, if the judge is looking at papers that are candidates to be taken home for review at the end of the day, the all-in-one thick ACCO-fastened document will lose every time.

When preparing the Notice of Motion, make sure that it lists each matter for which summary adjudication is sought. Where only some issues are raised in the notice, the Court has no power to adjudicate others. Maryland Casualty Co. v. Reeder (1990) 221 Cal.App.3d 961, 974, fn. 4. But see Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 69 (court can rule on a ground not raised by moving party as long as parties are given notice and opportunity to respond. Query: given the mandatory 75-day period of the statute, does this mean the opposing party must be given 75 days' notice?). See also Weil and Brown, Civil Procedure Before Trial, section 10:329.1 et seq.

When preparing the evidence in support of the motion, make sure that all evidence is properly authenticated and is admissible. The Court can rely only on admissible evidence. Remember to comply with CRC 316 ) and highlight the deposition testimony relied upon. Department 53 has disregarded and refused to consider papers that did not comply. Failure to comply with this rule makes it very difficult for the Court when it is reviewing the papers.

When requesting judicial notice, make sure you understand what the Court can and cannot judicially notice. For example, a Court may take judicial notice of the existence of a document in a court file, but it cannot take judicial notice of the truth of facts asserted in such documents unless they are orders, findings of fact, conclusions of law, and judgments. See Bach v. McNelis (1989) 207 Cal.App.3d 852, 865. Also, make sure that you attach copies of every document of which you request judicial notice. CRC Rule 323. The fact that the document exists somewhere in the file is of no help to the Court. First, the Court does not want to spend its time searching the file for the document. Second, the Court probably will not have the volume of the file that contains the document in question. Third, the rule requires counsel to specify the part of the file and to make arrangements to have that file in the courtroom at the time of the hearing. CRC, Rule 323. It is much easier simply to attach a copy. That way you will be assured that the Court has had access to it prior to the hearing.

The papers that are required to oppose a motion for summary judgment or adjudication are set forth in CRC, Rule 342(e) and include (1) a Memorandum of Points and Authorities in Opposition to Motion, (2) a Separate Statement of Disputed and Undisputed Facts that must be properly set up (Rule 342(f) and (h)), (3) Evidence in Opposition to the Motion, (4) A Request for Judicial Notice (if applicable), and (5) Objection to Evidence (optional, if appropriate).

For ease in preparing an opposing separate statement, counsel may request an electronic version of the separate statement that the moving party prepared (assuming an electronic version was created). If such a request is made, the moving party must furnish such within three calendar days. CRC, Rule 342(I). Every party opposing a summary judgment motion should make it a practice to request the electronic version of the separate statement, which should save a huge amount of time when preparing the opposition statement.

The moving party has the right to file a reply memorandum. Although not required by court rule, the Court appreciates the preparation and filing of a composite separate statement with the reply memorandum, showing the positions of both sides on claimed disputed issues and the evidence relied upon to create such dispute. The reply papers should not include additional evidence that is relied upon by the moving party. The court will generally not consider such. If the new evidence is appropriate for some reason, the Court must give the opposing party the opportunity to respond. See San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308 (court cannot rely on evidence first submitted with reply papers to grant a motion for summary judgment).

The next installment will cover tips on the preparation of memoranda and the separate statement.

May / June 2005