Civil Litigation Legal Topics Litigation Strategy Pretrial Matters

Stay Mum About What Happens to a Summary Adjudication Motion

You made a successful summary adjudication motion and you are itching to tell the jury about it at trial. Unfortunately, you are legally required to keep your lips sealed on the issue. But there may be a way to give the jury a heads up without running afoul of the law.

Winning a summary adjudication motion is a very big deal: At trial, any causes of action, defenses, claims, or issues on which the motion has been granted are deemed to be established. CCP §437c(n)(1).

But no one — party, witness, or court — may comment on the granting or denial of a motion for summary adjudication in front of a jury at trial. CCP §437c(n)(3).

There may, however, be ways to make a jury aware of the result of a summary adjudication motion without actually violating this rule against commenting on the granting or denial of the motion.

For example, if the court granted a defendant’s motion for summary adjudication of a plaintiff’s request for punitive damages, the defendant may be able to tell the jury that “plaintiff is not asking for punitive damages here” (or something to that effect), as long as he or she doesn’t reference the fact that the absence of a punitive damages request is the result of a successful summary adjudication motion.

Similarly, it is probably permissible for a party to question a witness about evidence submitted in support of, or in opposition to, a summary adjudication motion (again, as long as the party doesn’t comment on which side was successful). For example, if the court granted a defendant’s motion for summary adjudication, at trial the defendant can probably question a plaintiff-affiliated witness about a declaration he or she submitted in opposition to the motion. A particularly attentive and thoughtful jury may realize that the cause of action to which the declaration relates is no longer in the case.

If you are going to take one of these sly routes, be very cautious about it. The value of making the jury aware of the result of a motion for summary adjudication is questionable. Whatever minimal value there may be is likely outweighed by the risk of being admonished by the court—or worse, a potential mistrial—for running afoul of the rule.

And while we’re on the subject of summary adjudication, here’s a heads up about a change in the law: CCP §437c was amended effective January 1, 2012 to permit summary adjudication of “a legal issue or a claim for damages other than punitive damages that does not completely dispose of a cause of action, an affirmative defense, or an issue of duty.” CCP §437c(s). This is a big change, because it permits partial summary adjudication when the moving party jumps through specified hoops. CEB has complete coverage of this new rule in a Law Alert on

For everything you need to know about summary adjudication motions, turn to CEB’s California Summary Judgment. Also check out California Civil Procedure Before Trial, chap 36.

© The Regents of the University of California, 2012. 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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