Every motion for summary judgment or summary adjudication must include “a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed.” CCP §437c(b)(1). Here’s what to include in a separate statement and how to format it.
Separate statement contents:
The separate statement must separately identify (Cal Rules of Ct 3.1350(d)):
- Each cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion;
- Each supporting material fact claimed to be undisputed with respect to each cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion; and
- Supporting evidence that establishes those undisputed facts, with citations to the evidence for each fact, including references to exhibits, titles, and page and line numbers.
Identify only material undisputed facts. All undisputed facts listed in the separate statement must be material, i.e., those that tend to prove or disprove an element of the cause of action or defense. A factual issue is nonmaterial when it has no significance in determining the outcome of the case.
Identify only necessary facts. Don’t include too many proposed facts in its separate statement. Motions can be lost when an opposing party focuses on a proposed fact in the moving party’s separate statement and can show that a dispute exists about it.
Don’t overstate facts. Accurately state the facts in evidence. Don’t overstate the proposed facts in the separate statement; rather, evidentiary citations must actually support the proposition, ideally in the precise language. The opposing party will almost certainly bring any overreaching to the court’s attention, resulting in the moving party’s position losing credibility.
Identify evidence for each fact. For each material, necessary, and accurate fact, identify supporting evidence. Identify in the separate statement where the evidence supporting each material fact is specifically located, e.g., “page 2, lines 3–12 of plaintiff’s deposition” or “on page 4 of Exhibit B, attached to the declaration of defendant.”
Format of the separate statement:
The separate statement filed in support of a summary judgment or summary adjudication motion must follow the format set out in the sample in Cal Rules of Ct 3.1350(h). It’s important to precisely follow this mandatory format or risk the motion’s denial.
Required two-column format:
- The first column lists the undisputed facts in numerical sequence, followed by the supporting evidence that establishes the undisputed facts, with references to exhibits, titles, and page and line numbers (Cal Rules of Ct 3.1350(d)(3)).
- The second column should be left blank by the moving party (to await opposing party’s evidence).
Required electronic version. Within 3 days of a request, the moving party must provide to any other party or the court an electronic version of its separate statement. Cal Rules of Ct 3.1350(i).
Preparing a separate statement for the first time (or the first time in a while) can be daunting. Check out the sample separate statement and checklist in CEB’s California Summary Judgment, chap 6. And for an overview of bringing and opposing summary judgment motions, as well as what to do and when to do it, view CEB’s program An Introduction to Summary Judgment Motions, available On Demand.
Other CEBblog™ posts you may find useful:
- The Mighty Separate Statement
- Checklist: Moving for Summary Judgment
- Which Summary Judgment Document Do You Draft First?
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