1. Consider alternatives to narrow issues. Before deciding to file a summary judgment motion, consider pretrial means of narrowing the issues. Possibilities for narrowing issues include:
- Stipulations (but see Magana Cathcart McCarthy v CB Richard Ellis, Inc. (2009) 174 CA4th 106, 121 (stipulations may not be used as substitute for summary judgment));
- Requests for admission (CCP §§2033.010–2033.420);
- Severance of the issues in the case into separate phases;
- Mini-trial or arbitration of key issues;
- Mediation, which can also include the mediator’s review of draft summary judgment papers and an advisory opinion on the likely outcome; and
- Dismissal of superfluous causes of action.
2. Review the case for disputed matters. Review the pleadings and discovery documents to determine (1) what elements must be proved or negated on the motion, and (2) whether any facts material to those elements are in dispute and thus inappropriate for summary resolution.
3. Distinguish factual from legal disputes. Summary judgment and summary adjudication are only available when issues of law, not issues of material fact, are in dispute. An issue of law is a dispute over a legal conclusion, such as the existence of a legal duty. A disputed issue of material fact arises when an allegation of material fact is made by one party and controverted by the other party.
4. Identify matters that can be disposed of completely. If summary judgment doesn’t have a strong probability of being granted, consider whether certain issues are appropriate for summary adjudication. Seeking summary judgment when grounds don’t exist will result in a loss of credibility with the court and may hinder the opportunity to have key issues eliminated by a summary adjudication motion. You can move for summary judgment with an alternative motion for summary adjudication under CCP §437c(f) or for summary adjudication under CCP §437c(s).
5. Consider other tactical maneuvers. Consider other tactical moves first, such as:
- Proposing a prevailing party attorney fee agreement. Before filing a summary judgment or adjudication motion, consider proposing an agreement that the prevailing party recover its reasonable attorney fees from the losing party. Such proposals are rarely accepted, but the party making the proposal immediately gains leverage in mediation and negotiations over a party who was not bold enough to accept the proposal.
- Seeking to informally resolve the motion. Although the adversary will almost never agree to drop the claims that will be attacked by the motion, there’s no downside in inviting them to do so, and courts appreciate informal attempts to avoid motions, even when futile. Indeed, some local rules require such a meet-and-confer effort as a prerequisite to filing the motion.
- Holding a private trial of key issues. A private trial of key issues is a way to avoid incurring the expense of filing a summary judgment motion.
For guidance on all aspects of moving for and opposing summary judgment, including strategic considerations, turn to CEB’s California Summary Judgment, chap 1. Also check out CEB’s program The Personal Injury Basics: Summary Judgment, available On Demand.
Other CEBblog™ posts on summary judgment and summary adjudication:
- 8 Questions to Ask Before Making the Move for Summary Judgment
- 10 Tips for Optimizing Your Opposition to a Summary Judgment Motion
- Stay Mum About What Happens to a Summary Adjudication Motion
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