The previous six installments have discussed the attorneys' preparation of summary judgment papers. The focus of this article is the role of the court in summary judgment motion practice and the standards that guide it in deciding whether to grant or deny the motion. Hopefully, the reader will gain insight into how the court approaches a summary judgment or adjudication motion.

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

As everyone should know, in ruling on a motion for summary judgment or adjudication, the court's role "is merely to determine whether . . . issues of fact exist, and not to decide the merits of the issues themselves." Molko v. Holy Spirit Assn. (1988) 46 Cal.3rd 1092, 1107 (superseded by statute on other grounds). The court must consider both the evidence "and all inferences reasonably deducible from the evidence...." CCP section 437c(c). However, the moving party's evidence must leave no room for conflicting inferences as to material facts. "Summary judgment shall not be granted ... based on inferences reasonably deducible from the evidence, if contradicted by other inferences or evidence, which raise a triable issue as to any material fact." CCP section 437c(c).With one exception, credibility issues are left for the trier of fact. "A court generally cannot resolve questions about a declarant's credibility in a summary judgment proceeding, unless admissions against interest have been made which justify disregard of any dissimulation." AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1065 (citations omitted). The court has discretion to deny a motion "where the only proof of a material fact offered in support of the summary judgment is . . . a declaration made by an individual who was the sole witness to that fact; or where a material fact is an individual's state of mine, or lack thereof, and that fact is sought to be established solely by the individual's affirmation thereof." CCP section 437c(e).

When the court is faced with a declaration that contradicts the declarant's discovery responses, the court will generally give more weight to the latter and even disregard the former if the conflict is a direct one. The rule is that admissions or concessions made during the course of discovery govern and control over contrary declarations lodged at a hearing on a motion for summary judgment. Visueta v. General Motors Corp. (1991) 234 Cal.App.3d 1609, 1613. See also D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21 - 22. Hence, the opposing party cannot create a triable issue of material fact by filing a declaration that, without explanation, directly contradicts an interrogatory answer, response to a question posed during a deposition, or another admission obtained during the discovery process. A party cannot freely proffer a self-serving declaration to impeach his/her prior discovery answers. In such a situation, the trial court is entitled to give greater weight to the discovery admission and ignore the declaration to the contrary. Preach v. Monter Rainbow (1993) 12 Cal.App.4th 1441, 1451.

"The papers are to be construed strictly against the moving party and liberally in favor of the opposing party: any doubts regarding the propriety of summary judgment are to be resolved in favor of the opposing party." Kulesa v. Castleberry (1996) 47 Cal.App.4th 103, 112, criticized on other grounds in San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308.

The court cannot consider an unpleaded issue in ruling on Motion for Summary Judgment/Adjudication. Roth v. Rhodes (1994) 25 Cal.App.4th 530, 541. Hence, documentary evidence filed in opposition to a motion cannot create issues outside the pleadings. Couch v. San Juan Unified School Dist. (1995) 33 Cal.App.4th 1491, 1500. "[C]ounter declarations are no substitute for amended pleadings." AARTS Productions, Inc. v. Crocker National Bank, supra, 179 Cal.App.3d at 1065. If either party wishes the trial court to consider a previously unpleaded issue in connection with a motion for summary judgment, such party may request leave to amend. See Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1663 -1664.

In ruling on a motion for summary judgment/adjudication, the court applies the following three step analysis: (1) identify the issues framed by the pleadings, (2) determine whether the moving party has negated the opponent's claims (i.e., whether the moving party has met its burden), and (3) determine whether the opposition has demonstrated the existence of a triable material fact. See Silva v. Lucky Stores, Inc. (1998) 65 Cal.App.4th 256, 261. If the court determines that the moving party has not met its burden, the analysis stops there and the motion will be denied. If the Court finds that the moving party has met its burden, it will then examine the opposition papers to determine whether evidence is present that creates a triable issue of material fact.

The general summary judgment standard of review is modified somewhat for employment discrimination/retaliation claims under the FEHA in which the court applies the following three step analysis (see McDonnell Douglas Corp v. Green (1973) 411 U.S. 792, 802-805: First, the employee must have made out a prima facie case of retaliation by establishing the following: (a) the employee engaged in protected activity, (b) the employer subjected the employee to an adverse employment action, and (c) there is a causal link between the two. Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 476. The burden then shifts to the employer to articulate a legitimate nondiscriminatory reason for any adverse employment action, e.g., a legitimate business reason. Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138, 155. If the employer meets this burden, the burden shifts back to the employee to show that the asserted nondiscriminatory reason is untrue or pretextual, or that the employer acted with a retaliatory animus, with a showing sufficient to permit a reasonable trier of fact to conclude that the employer engaged in unlawful retaliation. Horn v. Cushman & Wafefield Western Inc. (1999) 72 Cal.App.4th 798, 806-807.

Where a defect appears on the face of the complaint, a trial court may elect to treat the hearing of the summary judgment motion as a motion for judgment on the pleadings and grant the opposing party an opportunity to file an amended complaint to correct the defect. Hobson v. Raychem Corp. (1999) 73 Cal.App.4th 614, 625, disapproved on other grounds by Colmenares v. Braeman Country Club (2003) 29 Cal.4th 1019, 1031, fn. 6.

The court will generally deny a motion for summary judgment or adjudication that sets forth "issues" to be adjudicated if such issues are not identified as being co-extensive with a cause of action, claim for punitive damages, an affirmative defense or an issue of duty. The motion must fully dispose of the cause of action or defense at issue. For example, the court will not grant a motion for summary adjudication of the issue of liability, leaving damages to be decided at trial because such does not completely dispose of the cause of action. Damages is an essential element and it would be improper to grant a motion where the amount of damages is left to be determined. Dept of Industrial Relations v. U I Video Stores, Inc. (1997) 55 Cal.App.4th 1084. If damages are desired to be considered separately, the correct procedure is a motion to bifurcate the liability and damages issue at trial.

The court must grant a motion for summary judgment if all the papers submitted by the moving party show that there is no triable issue as to any material fact and that he or she is entitled to a judgment as a matter of law. CCP section 437c(c). The failure of the opposing party to file opposition papers that includes a separate statement of disputed material facts not less than 14 days prior to the motion "may constitute a sufficient ground, in the court's discretion, for granting the motion." CCP section 437c(b). The failure of the opposing party to file its own responsive separate statement that cites to evidence that creates a disputed issue of material fact is fatal. Further, an opposing party who has failed to file the required opposition papers cannot defeat the moving party's right to a determination on the merits by filing a dismissal the day a motion is heard. Cravens v State Board of Equalization (1997) 52 Cal.App.4th 253, 256. Under those circumstances the court is free to ignore the dismissal and grant the motion.

Here are a few practical tips to close this discussion. First, in reviewing a motion and the opposition, the court will usually be reviewing the memorandum, the separate statement, and the evidence in support or opposition to the motion at the same time. Hence, the court much prefers that these documents be separately bound. When these documents are Acco-fastened as one document, it becomes very unwieldy for the court to work with. Further, if the evidence offered in support of, or opposition to, the motion, is more than 25 pages, it is required to be separately bound and accompanied by a table of contents. CRC, Rule 342(g).

Second, make sure that the separate statement cites to admissible evidence. A moving party's separate statement that fails to cite admissible evidence to support its proffered facts will lead to the denial of the motion. An opposing separate statement that purports to dispute a fact without citing admissible evidence to create the dispute is of no value to the court in deciding the matter. The citation to opposing party's additional material facts is insufficient to satisfy the requirements of CRC, Rule 342(f). This rule requires that "[a]n opposing party who contends that a fact is disputed must ... describe the evidence that supports the position that the fact is controverted. That evidence must be supported by citation to exhibit, title, page, and line numbers in the evidence submitted."

May / June 2006