Part 3 of this article appeared in the September/October issue of the Sacramento Lawyer. This installment picks up where the third 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.

A litigant has the option of bringing a motion for summary adjudication either along with, or in place of, a summary judgment motion. A practical tip that attorneys preparing a motion for summary judgment would be well-advised to follow is to set up the motion as one to summarily adjudicate each cause of action. If the moving party has correctly assessed the matter, the end result will be to have the motion for summary judgment granted. If not, the moving party still as a chance to have some of the causes of action adjudicated and removed from the case. If the motion is set up solely as a summary judgment motion, it is an all or nothing proposition.

Under prior versions of CCP section 437c, litigants could seek to summarily adjudicate issues. However, that is no longer the case. The purpose of the enactment of CCP section 437c(f) was to stop the practice of piecemeal adjudication of issues that did not completely dispose of a "substantive area" (e.g., cause of action). Catalano v. Superior Court (2000) 82 Cal.App.4th 91, 97. Under current law, a motion for summary adjudication may be granted only if it completely disposes of (1) a cause of action, (2) an affirmative defense, (3) a claim for punitive damages, or (4) an issue of duty. CCP section 437c(f)(1). It is no longer permissible to seek summary adjudication of "issues" alone.

The only claim of damages that can be summarily adjudicated is a claim for punitive damages. Although CCP section 437c(f) provides for summary adjudication of "one or more claims for damages," it adds "as specified in Civil Code section 3294," i.e., punitive damages. Hence, the motion is not available to adjudicate a claim for general damages unless such would dispose of an entire cause of action.

These principles should be kept in mind when drafting or opposing a motion. A motion that seeks adjudication of issues that are not co-extensive with one of the four permissible bases for summary adjudication is improper and may be successfully opposed. However, a defendant who moves for summary judgment/adjudication is not necessarily limited to the manner in which plaintiff has drafted his/her/its complaint. Instead, the moving party may "Lilienthal" a cause of action set forth in a complaint; that is, take a complaint or a count thereof that in reality sets forth two or more claims for relief, a treat them as if they had been separately set forth. Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848. In Lilienthal, the Appellate Court stated the following:

"[W]e hold that under subdivision (f) of section 437c, a party may present a motion for summary adjudication challenging a separate and distinct wrongful act even though combined with other wrongful acts alleged in the same cause of action." 12 Cal.App.4th at1854-1855, fn.omitted.

See also Edward Fineman Co. v. Superior Court (1998) 66 Cal.App.4th 1110, 1118. A common example would be a complaint that contains only one cause of action but seeks relief for both discrimination against a member of a protected class and retaliation for complaining about such discrimination. If a defendant has a complete defense to either the discrimination or retaliation claim, but not both, a motion for summary adjudication can be directed to one claim, notwithstanding that the two claims are combined in a single cause of action.

Another Appellate Court (Second District) has questioned the viability of Lilienthal for such a proposition since the Lilienthal case was decided at the time when the statute permitted the summary adjudication of "issues." Bagley v. TRW, Inc. (1999) 73 Cal.App.4th 1092, 1094 fn. 2. However, the amendments to the summary judgment statute appear to have adopted the Lilienthal rationale. The statute now provides that a defendant moving for summary judgment or adjudication must show that "one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action." CCP section 437c(o) (emphasis added).

A party moving for summary judgment/ adjudication need not negate matters that the opposing party would have to prove at trial (i.e., need not disprove an essential element of the plaintiff's case). However, in order to prevail, defendant must produce direct or circumstantial evidence that the plaintiff does not have and cannot reasonably expect to obtain evidence to establish a prima facie case. Hagen v. Hickenbottom (1995) 41 Cal.App.4th 168, 186. Once defendant has met this burden, it shifts to plaintiff to show that a triable issue of material fact exists with respect to these matters. Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 578. To meet this burden, plaintiff cannot simply rely on the allegations of its pleadings, but must establish with admissible evidence that a triable issue of material fact exists. CCP section 437c(o)(2).

Consistent with the foregoing principles, a defendant moving for summary judgment may rely on factually devoid discovery responses of plaintiff to shift the burden of proof as to whether there are triable issues of fact precluding summary judgment to plaintiff. CCP section 437c(p)(2). Union Bank v. Superior Court, supra, 31 Cal.App.4th at 580-581. Thus, a party who has responded "I do not know" or "I have no information" to discovery requests covering the elements of the cause of action, will be facing the granting of the motion based on the Union Bank rule.

Admissions or concessions made during the course of discovery govern and control over contrary declarations filed in support of or in opposition to 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. 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. However, the contradiction must be clear and unambiguous. Price v. Wells Fargo Bank (1989) 213 Cal.App.3d 465, 482 (cannot be based solely on "fragmentary and equivocal concessions" made during depositions testimony). Declarations that appear to contradict ambiguous admissions are generally permissible. Benavidez v. San Jose Police Dept. (1999) 71 Cal.App.4th 853, 862. See Weil and Brown, Civil Procedure Before Trial, sections 10:155 -10:156.6).

A plaintiff moving for summary judgment/ adjudication bears the burden of persuasion that "each element of" the "cause of action" in question has been "proved," and hence that "there is no defense" thereto. CCP section 437c(p)(1). Since damages is generally a required element of a plaintiff's cause of action, care must be taken in drafting the moving papers to show that there is no issue of material fact with respect to damages.

Summary judgment may be based on an inference when it is the only plausible inference that may be drawn from undisputed facts. Evidence from which conflicting inferences may be drawn is insufficient to meet the movant's burden. CCP section 437c(c); see Anderson v. Metalclad Insulation Corp. (1999) 72 Cal.App.4th 284, 297. Further, the court in its discretion may deny a motion where the only evidence offered in support of a material fact is either the declaration of a person who was the only witness to the event or the material fact concerns the declarant's state of mind. CCP section 437c(e).

When an expert opinion is necessary to support a motion for summary judgment, care must be taken in drafting the declaration. A conclusionary expert declaration will not suffice. The failure to make sure that the opinion is supported by reasons or explanations will result in the failure to establish the absence of a material fact issue for trial, which will result in the motion being denied. CCP section 437c(d); Kelley v. Trunk (1998) 66 Cal.App.4th 519, 524.

Cases involving pure questions of law are particularly well-suited to summary judgment motions. For example, a case that turns on the interpretation of a statute, including its preemptive effect, is a question of law that may be considered on summary judgment. Knight v. Superior Court (2005) 128 Cal. App. 4th 14, 22; Garofalo v. Princess Cruises, Inc. (2000) 85 Cal.App.4th 1060.

The next installment will examine what is required to successfully oppose a motion for summary judgment/adjudication.

November / December 2005