Civil Litigation Legal Topics

10 Things to Check Before Moving for Summary Judgment

Summary judgment is a great way to cut down on the economic and emotional costs of continued litigation. As explained by the California Supreme Court, the law of summary judgment is intended to provide courts with a way to cut through the parties’ pleadings to determine whether, despite their allegations, a trial is actually necessary to resolve their dispute.  Aguilar v Atlantic Richfield Co. (2001) 25 C4th 826, 843, 107 CR2d 841.

As with everything else related to litigation, it is best to approach summary judgment with a plan, and what’s a better way to help you organize a plan than using a checklist?

Here’s a checklist with 10 questions to ask yourself before moving for summary judgment:

1. Have you reviewed the timing requirements? (see CCP §437c for all the rules on timing).

2. Have you reviewed the form and format requirements stated in Cal Rules of Ct 3.1350?

3. If you may be requesting judicial notice, have you checked Evid C §§451-453 and local rules for procedures when requesting court files?

4. If you are bringing an expedited summary procedure in an unlawful detainer or forcible entry action, have you reviewed CCP §1170.7?

5. If you are bringing an expedited summary procedure in a consumer class action, have you reviewed CC §1781(c)?

6. If you are a defendant moving for summary judgment and are being sued for indemnity, contribution, or under the California Government Claims Act, have you reviewed CCP §1038 concerning the procedure for recovering costs if you prevail on the motion?

7. Have you evaluated the pleadings?

A. Do the pleadings contain all the necessary elements of each cause of action or defense that must be proved to prevail on the motion?

B. If there are defects on the face of the pleadings, will opposing counsel stipulate to amend the pleading? If counsel will not stipulate, have you filed a motion to amend?

C. If there are defects on the face of your opponent’s pleadings, should you instead consider making a motion for judgment on the pleadings?

D. If you plan to move for summary judgment based on a defect in your opponent’s pleadings (such as a failure to properly plead a cause of action), should you consider the possibility that your opponent may respond to your motion by simply filing a motion to amend his pleadings?

E. What are the material facts set out in the (amended) pleadings?

8. Have you assessed the state of the evidence?

A. Does the evidence gathered to date establish to the requisite degree of proof that the material facts are undisputed?

B. Is the evidence susceptible to more than one meaning?

C. Is further discovery necessary?

D. Is the evidence on which the motion is based admissible?

9. Are stipulations from the opposing party prepared and obtained, if appropriate?

10. Have you determined the best sequence for preparing the documents supporting the motion?

For assistance in answering all of these questions, check out CEB’s California Summary Judgment, which also includes many more helpful checklists!

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© The Regents of the University of California, 2010. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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