Should You Always Move for Summary Judgment and Summary Adjudication in the Alternative?

Motions for summary judgment and summary adjudication are frequently made in the alternative. Do you know why this is and when not to move alternatively?

Here are a couple of reasons to make motions for summary judgment and summary adjudication in the alternative:

  1. Making motions in the alternative gives the court more latitude. The court can determine whether there are triable issues of fact as to specific claims or defenses, even if it denies summary judgment as to the entire action. See CCP §437c(f)(2). ). See, e.g., Food Pro Int’l, Inc. v Farmers Ins. Exch. (2008) 169 CA4th 976, 995 (trial court denied defendant’s motion for summary judgment but granted summary adjudication of plaintiff’s punitive damages claim). If made in the alternative, a summary adjudication motion may refer to and depend on the same evidence submitted in support of the summary judgment motion. Cal Rules of Ct 3.1350(b).
  2. Making motions in the alternative can make a difference on appeal. If the trial court grants summary judgment and the reviewing court determines there are triable issues of fact affecting fewer than all causes of action, reversal of the summary judgment isn’t the only option. If the moving party alternatively moved for summary adjudication, the appellate court may direct the trial court on remand to enter an order granting summary adjudication of the unaffected claims or defenses. Troyk v Farmers Group, Inc. (2009) 171 CA4th 1305, 1354 (directing trial court to grant summary adjudication of defendant’s affirmative defenses, which trial court “implicitly rejected” in granting summary judgment). Not moving in the alternative leaves the appellate court without this option. In Samara v Matar (2017) 8 CA5th 796, 810, there was no alternative motion for summary adjudication and so the appellate court couldn’t direct the trial court to dispose of an unaffected claim and instead had to just reverse summary judgment.

In most situations it’s advantageous to move for both summary judgment and summary adjudication in the alternative. But there are situations in which you may not want to include summary adjudication. For example, if you’re confident that the court will grant your summary judgment motion, then consider not moving in the alternative. Presenting issues separately may create the impression that some arguments are stronger than others, and that you’re hedging your motion by ensuring that the court will “at least” grant summary adjudication of those issues for which you have “strong” arguments, even if it denies summary adjudication of those issues for which you have “weak” arguments.

For more of this practical advice and everything you need to know to move for or oppose motions for summary judgment or summary adjudication, turn to CEB’s California Summary Judgment. And for an overview of bringing and opposing summary judgment motions, as well as what to do and when to do it, check out CEB’s program An Introduction to Summary Judgment Motions, available On Demand.

Other CEBblog™ posts on summary judgment issues:

© The Regents of the University of California, 2018. 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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