Motions for summary judgment: Don't overload the trial court with unnecessary objections

Although Code of Civil Procedure section 437c allows for either written or oral objections, without question, I would recommend preparing written objections rather than relying on making them at the hearing.  “Part of the judicial function in assessing the merits of a summary judgment or adjudication motion involves a determination as to what evidence is admissible and that which is not.”  (City of Long Beach v. Farmers & Merchants Bank of Long Beach (2000) 81 Cal.App.4th 780, 784.)  If the judge is going to review the paperwork well in advance of the hearing, wouldn’t you prefer giving the judge your objections at that time, rather than waiting until the last minute?  Code of Civil Procedure section 437c(b)(5) provides “Evidentiary objections not made at the hearing shall be deemed waived.”  Code of Civil Procedure section 437c(d) requires that objections based on the failure to comply with the requirement that the affidavits or declarations shall be made on personal knowledge “shall be made at the hearing or shall be deemed waived.”

California Rules of Court, Rule 3.1352 provides:

“Any party desiring to make objections to evidence in the papers on a motion for summary judgment must either:

(1)              Submit objections in writing under rule 3.1354; or

(2)             Make arrangements for a court reporter to be present at the hearing.”

While the presence of the court reporter and reporting of the hearing ensures that a record is made of the objection, it still does not give the court advance warning to consider the objections when it is reviewing the motion papers.   If you decide to file written objections with your papers, they must be served or filed at the same time that your opposition or reply are served and filed “[u]nless otherwise excused by the court on a showing of good cause, . . .”  (California Rules of Court, rule 3.1354.

The format for written objections can be found in California Rules of Court, rule 3.1354.  You should stick to that format without deviation.  Just the other day, I was consulted by an attorney who showed me a tentative ruling by a judge who refused to consider  written objections because they were not in proper format.  One moving party won its motion for summary judgment because the judge sustained objections to the expert's declaration, while the other moving party lost the motion because the objections were not in proper format, and as a consequence, were not considered by the judge.  You don't always know whether you have a judge who is a stickler for the rules or one who looks beyond minor procedural errors.  Don't take that chance and you will be safe from procedural attacks!

Even though you have the right to make objections, I would recommend that you be judicious in the amount of objections you make.  Determine whether it is really important to the issues in the case.  Before the new rules required attorneys to submit a proposed order that allowed the judge to check of “overruled” or “sustained,” a voluminous amount of objections always made it difficult for the judge to rule.  Now that task is much easier but if you really want to make life easy for the judge, stick to objections that have merit and will ultimately affect the motion.

Summary Judgments: Make it easy for the courts

Whether you are the moving or opposing party, you want to make the trial court's task in reviewing the motion for summary judgment as easy as possible.  That means having a clear and concise Introduction, topic headings that are fairly descriptive of the argument, and a presentation that is easy on the eyes.  To me, that includes shorter sentences with active verbs, and shorter paragraphs.  Variety is the spice of life, and I think this rule applies to sentence structure.  I also make sure that I throw in a few indented quotes to mix up the structure so the judge isn't facing the monotony of page after page with no change in format.

I try to make it easy for the trial court, and the court of appeal, to give me what I want.   Judges are often overworked and saddled with large caseloads. Your case is not the only case on the calendar.  Don’t expect them to remember your case as you do or recall your last hearing.  You are lucky if they do, and if they don’t, they may not want to admit it.  That means making your motion or opposition as comprehensive as possible.  That also means presenting it in a way that doesn’t require the court to hunt for documents or evidence.  This suggestion could apply to something as simple as tabbing and indexing your evidence.  Tabs make everyone’s life easy.  It also means not referring to evidence in your memorandum of points and authorities, and then avoiding it when preparing the Separate Statement.

And finally, keep your page count to a respectable level.  You can do that by trying to stay focused and not bring up matters that will only complicate the motion.  Complications work against a moving party as the trial court may suspect there is a triable issue lurking somewhere; it just hasn’t found out where it is.

Another case in the ongoing Hanif saga: Yanez v. Soma Environmental Engineering

The Court of Appeal, First Appellate District, Division One, certified a new opinion for publication in Yanez v. Soma Environmental Engineering, Inc., Case No. A123893, that adds more fuel to the fire over Hanif v. Housing Authority (1988) 200 Cal.App.3d 635. Many plaintiffs' attorneys were delighted with the opinion in Howell v. Hamilton Meats (2009) 179 Cal.App.4th 686, review granted March 10, 2010, No. S179115, citing it to defense counsel and insurance adjusters, only to discover review had been granted by the California Supreme Court. Of course, plaintiffs' attorneys can continue to argue the reasoning,

In Yanez, the plaintiff sued for injuries she suffered in an auto accident.  She was awarded $150,000 in damages, including $44,519 for past medical expenses after a jury trial.  SOMA moved to reduce the award to $18,368 for the amount actually accepted by her medical providers as payment in full under contracts with Aetna and Healthnet, plaintiff's private insurers.  The trial court reduced the judgment and Yanez appealed.  The Court of Appeal reversed the amended judgment and remanded it back to the trial court to restore the original amount of damages and redetermine Yanez's entitlement to costs and prejudgment interest under CCP 998.

At trial, Yanez was able to present evidence of the amounts billed by her health care providers without regard to the amounts actually paid or still considered owing by the provider.  The trial court ruled it would later conduct a post-trial hearing to determine if the amount should be reduced.  In a motion to tax costs, SOMA claimed plaintiff should not have the benefit of CCP 998 because if the medical expense award were reduced, the judgment would be less than Yanez's 998 offer.

The appellate court's opinion, written by Justice Margulies, examines decisions on this issue from around the country and concluded that the trial court erred in reducing the medical specials to the amounts actually paid by insurers.  It found "Haniff used overly broad language and the extension of its holding to private insurance by Nishihama and other cases is inconsistent with the collateral source rule."  (Opn., pg. 14.)  It also noted that whether the full bills reflected the reasonable value of the services provided by health care providers was a separate issue for the jury, and not the trial court, to decide.  The court also stated, "In particular, Hanif did not address or appear to contemplate situations in which patients covered by private health insurance are charged reduced rates by the provider for their care as an insurance benefit negotiated between the insurer and the health care provider."  (Opn., 15.)

Justice Banke filed a 39-page concurring opinion, noting the confusion in the law on the measure of damages for past medical expenses and "[w]ith the exception of damages for gratuitously provided medical services, our Supreme Court has never affirmatively endorsed a measure of damages for past medical expenses nearly certain to result in an economic windfall to the plaintiff - that is, an award that exceeds the dollar amount actually paid or owed (and thus required to be paid in the future) to a provider."  (Concurring Opn., pg. 1.)  Justice Banke noted that the Supreme Court will address Hanif's application outside the Medicaid context, but concluded, "The threshold issue that needs clarification, however, is the measure of damages for past medical expenses."  (Concurring Opn., pg. 32.)  Justice Banke analyzed the measure of such damages, concluding that juries should heard all relevant evidence on the issue of "reasonable value" of medical services.  (Concurring Opn., pg. 39.)

This may not be the last word on this case.  The Opinion was filed on June 24, 2010 and it will be 30 days before it becomes final.  It may be subject to a petition for rehearing, or during the 10-day period after it becomes final, a petition to the California Supreme Court.  The petition could be granted so that the Court could reach a comprehensive opinion that covers the issues raised in Howell and Yanez v. Soma Environmental Engineering, Inc. The Opinion is well worth reading, especially since it covers the history of this area and calculating medical expenses, but it also analyzes the approaches taken by both Justices Moore and Fybel of our Court of Appeal in Olsen v. Reid (2008) 164 Cal.App.4th 200.

Appealing from a summary judgment

Finding a motion for summary judgment in your mailbox usually produces a certain amount of stress.  It may mean that you will be interrupting your well-planned (and tight) schedule by putting aside a large block of time devoted to opposing the motion.  Or it could mean that now you have to scramble to find an expert who will review your case and submit a declaration opposing the motion.  Or it reminds you of the discovery you put aside and now must tackle.

I am always surprised that attorneys are surprised (and unprepared) when they are served with motions for summary judgment.  From the date you are first retained, you should anticipate a motion for summary judgment as part of the litigation process and plan on  how you will oppose it.  While once carefully scrutinized and disfavored by trial courts, motions for summary judgment are increasingly being granted as a means of ridding busy courtrooms of cases that don’t require a trial to determine the winner.  We see them in cases that were on track for trial, such as medical malpractice or wrongful termination cases. A plaintiff’s attorney should not ignore the possibility of receiving a motion for summary judgment and should not be placed in the position of hunting down declarations, especially expert declarations that require a review of documents, while the clock is ticking.

As an appellate attorney, I have observed many errors committed both by the moving and opposing party.  Unfortunately, the parties often delay in seeking appellate consultation until after all the papers are filed and the hearing is concluded.  By then, it is often too late.  Some lawyers are now taking a more thorough approach by consulting with an appellate attorney before any papers are filed.  That is wise planning on their part because summary judgments make up a large percentage of appeals.

In this post and future posts, let’s consider the mistakes that are made by the moving party in preparing and filing a motion for summary judgment:

1. Don’t forget to tell a story with a beginning, middle and end. Some attorneys suffer from tunnel vision when it comes to their cases.  They have lived with their cases for months, even years, and may be thoroughly familiar with the facts.  But now you are dealing with someone – a judge with an enormous caseload – who doesn’t know your case.  Don’t focus on a breach without describing the contract, and don’t focus on the injuries a plaintiff sustained without first setting the scene, including the cause of the accident.  The motion, from the Introduction to the Statement of Facts to the Conclusion, must present a story that answers the questions and leads the reader to the inescapable conclusion that the opposing party can’t point to the existence of one triable issue of material fact, can't prove one element of a cause of action or can't defeat an affirmative defense.  When you are on appeal, you want your motion to present the story – the entire story – and not leave anything out.  The court of appeal has less familiarity with the case and the parties, and no judge or justice likes to feel that they are only seeing one piece of a big puzzle.

A few more reasons I like appeals from judgments after orders sustaining demurrers without leave to amend

Okay, if I haven't given you enough reasons, here are a few more why I like appeals from judgments after orders sustaining demurrers without leave to amend:

1. On review, the appellate court liberally construes the pleading in a reasonable manner. The appellate court is trying to determine if you can state a cause of action.  It will liberally construe the pleading so as to achieve substantial justice, not to summarily dispose of a defective pleading that can be salvaged.  Thus, the court will read the complaint in a reasonable manner, putting the allegations in context, and consider judicially noticed matter.  (Leonte v. ACS State and Local Solutions, Inc. (2004) 123 Cal.App.4th 521, 525; Page v. Los Angeles County Probation Dept. (2004) 123 Cal.App.4th 1135, 1141.)

2. For purposes of appeal, the appellate court assumes the truth of your allegations. If you allege facts in your pleading, and they are not contradicted by your exhibits and judicially noticed documents, then the court will assume the truth of your allegations.  (California Public Employees’ Retirement System v. Superior Court (2008) 160 Cal.App. 4th 174, 178, disapproved on other grounds in State Bd. of Chiropractic Examiners v. Superior Court (2009) 45 Cal.4th 963; Leonte v. ACS State and Local Solutions, Inc. (2004) 123 Cal.App.4th 521, 525.)  That assumption goes beyond the specific allegations, the appellate court will also assume the truth of facts that may be implied or reasonably inferred from the express allegations.  (Buller v. Sutter Health (2008) 160 Cal.App.4th 981, 985-986.)  However, if the allegations are contrary to law, the exhibits, or judicially noticed documents, they will be ignored.  (Consumer Cause, Inc. v. Weider Nutrition Internat., Inc. (2001) 92 Cal.App.4th 363, 367.)  And finally, if you have facts but forget to put them into the complaint, they are not presumed to exist.  (Kramer v. Intuit Inc. (2004) 121 Cal.App.4th 574, 579.)

3. The appellate court will not assume the truth of contentions, deductions, or conclusions of law or fact. The appellate court will not assume the truth of contentions, deductions, or conclusions of law or fact.  (Levi v. O’Connell (2006) 144 Cal.App.4th 700, 705.)  Of course, that could prove to be a benefit to you or an obstacle.  If you have included contentions and deductions in your pleading, then the court will ignore them, but if the defendant, in preparing the demurrer, is depending on contentions or deductions, then they will also be ignored.

Had enough of demurrers?  Next week I am going to start a discussion of common problems with motions for summary judgment.