Appeals/Post-Trial Matters Checklists Civil Litigation Legal Topics Litigation Strategy Pretrial Matters

Checklist: What to Do If Summary Judgment Is Denied

You moved for summary judgment but your motion was denied. Here’s a checklist of four things to ask yourself.

__   1.  Are there any new or different facts, circumstances, or law that couldn’t have been presented originally and would justify a motion for reconsideration under CCP §1008(a) in the trial court? Note that you only have 10 days after notice of the order was served on you to make this motion.

__   2.  If they don’t exist now, can new facts be developed to fill gaps in your evidence so the motion may be renewed later under CCP §1008(b)? The moving party may renew a summary judgment motion or a motion for summary adjudication in the trial court at any time not prohibited by the statute on a showing of different facts. As a new summary judgment motion, it must comply with the requirements of CCP §437c, including the requirement that the motion provide 75 days’ notice.

__   3.  Is there a basis for a writ to review the order denying summary judgment or summary adjudication? Keep in mind that writ review on the merits isn’t easy to get. Consider the following:

  • Does the order identify at least one triable issue of fact?
  • Does the order refer to the evidence showing that the fact identified is disputed?
  • Does the order identify any other basis for the denial (e.g., inability to obtain controverting evidence)?

__   4.  Should you consider appealing the order denying the motion after final judgment is entered in the case? Note that most orders granting summary judgment and summary adjudication don’t fare well on appeal and are often reversed. In Hawkins v Wilton (2006) 144 CA4th 936, 949 the court explained that  CCP §437c is “complicated,” with “little flexibility in [its] procedural imperatives,” and the issues raised by summary judgment and adjudication motions are purely legal; thus, “failure to comply with any one of its myriad requirements is likely to be fatal to the offending party.”

Get expert guidance on challenging a decision on a summary judgment motion in CEB’s California Summary Judgment, chap 12. And check out CEB’s program Summary Judgment: Hearing & Post-Hearing Procedures, Appeal, Attorneys Fees, Costs and Settlement, available On Demand.

Check out other CEBblog™ posts on summary judgment.

© The Regents of the University of California, 2017. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

4 replies on “Checklist: What to Do If Summary Judgment Is Denied”

Great post, Julie. I’d advise citing some caselaw on how CCP §1008 plays into the new motion. Opposing counsel will oppose strongly based on that section. Sit down and read CCP §1008 beginning to end: it tells you how to draft the new motion and things you need to include. Seen plenty of new motions denied because the moving party didn’t properly comply with CCP § 1008.

Add your comment to the blog post

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s