Civil Litigation Legal Topics Litigation Strategy Pretrial Matters

10 Tips for Optimizing Your Opposition to a Summary Judgment Motion

You just got hit with a summary judgment motion. Where do you begin to successfully oppose it? Start by asking yourself these ten questions; the answers will help you identify tactical considerations and optimize your opposition.

  1. Is there is at least one triable issue of material fact? Evaluate the pleadings and review discovery and other evidence for triable issues.
  2. Can this triable issue be shown in the required separate statement of disputed and undisputed facts? The opposing party’s separate statement is the most important way to graphically demonstrate the existence of a triable issue.
  3. Do your opposition papers contain only admissible evidence? Opposing affidavits must be based on personal knowledge and admissible evidence; the declarant’s statement “to the best of my knowledge” is insufficient.
  4. Are your declarations made in good faith?  If the court determines that any affidavits or declarations were filed in bad faith or solely for the purpose of delay, it must order the party presenting them to pay the other party’s reasonable expenses incurred by their filing. CCP §437c(j).
  5. Are there possible objections to the moving party’s evidence? Make sure to identify the page and line number of the documents to which the objection is made and the specific ground for the objection. If you have not prepared written objections to the evidence, arrange to have a court reporter for the hearing.
  6. Are there points and authorities that will effectively counter the moving party’s memorandum? The opposition memorandum should specify the material fact(s) that are clearly in dispute (with references to evidence), meet each of the moving party’s arguments, cite to the moving party’s burden of showing there is no triable issue of fact, and negate cases supporting the moving party’s position.
  7. Would it be useful to attach a proposed order to your opposition papers? The opposing party’s proposed order gives the court a road map to denying the motion.
  8. Does your proposed order list each material triable issue of fact and specifically refer to the evidence that establishes the triable issue of fact? If a motion is denied, the court must specify one or more material facts on which a triable controversy exists and specifically refer to the evidence indicating that a triable controversy exists. CCP §437c(g). You can help the court meet this requirement by including a proposed order specifying the issues still in dispute with appropriate page references to the controverting evidence.
  9. When must your opposition be timely filed and served? Any opposition to a motion for summary judgment must be served and filed at least 14 days before the date of hearing unless for good cause the court orders otherwise. CCP §437c(b)(2).
  10. Would a cross-motion for summary judgment be advisable? A cross-motion may be appropriate when, e.g., the facts are undisputed and liability turns on the application of statutory or contract language.

For everything you need to know about opposing a summary judgment motion, including many helpful checklists and sample forms, go to CEB’s California Summary Judgment.  If you are moving for summary judgment, also check out our blog post on 10 Things to Check Before Moving for Summary Judgment.

Related CEB blog posts:

© The Regents of the University of California, 2011. 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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