Abuse of the summary judgment motion

In Nazir v. United Airlines, Inc. (2009) 2009 WL 3235159, the First District, Division Two wasted no time in its criticism of the summary judgment procedure, particularly in employment litigation, noting it was abused by "deep pocket defendants to overwhelm less well-funded litigants. . . Here we confront the poster child for such criticism in a case involving what may well be the most oppressive motion ever presented to a superior court."

The plaintiff, Iftikhar Nazir, a Pakistani male, worked for United Airlines for over 16 years and was terminated for violating United's zero tolerance policy.  He filed his complaint for harassment, discrimination and retaliation, including two battery and fraud causes of action.

United filed a massive summary judgment/summary adjudication motion, raising 44 issues.  Its separate statement was 196 pages long, many of which the court found - and United conceded - were not relevant.  United also filed a request for judicial notice of 174 pages, bringing the moving papers to the grand total of 1,056 pages.   Plaintiff's opposition was 1,894 pages long.  And while most reply papers are shorter than the moving papers, guess what?  The reply included a 297-page separate statement and 153 pages of exhibits and evidence.  The evidentiary objections were 324 pages in length and contained 764 objections, for a total of 1,150 pages of reply.

The trial court overruled one of United's evidentiary objections, sustaining 763 objections.  The appellate court concluded that the trial court's "ruling" on the objections was manifestly wrong.  It noted the record, "the likes of which we have never seen - not here, not in the combined 11 years of law and motion experience of the members of which panel."

Here are a few findings:

• More than half of the 44 issues failed to meet the burden in CCP 437c that they completely dispose of a cause of action.


• Many of the facts stated in the separate statement were repeated and/or were not material.


• United filed an improper separate statement with its reply papers.


• Evidence was improperly submitted in the reply.


• The court sustained 763 objections and yet no mention was made of the objections in the court's tentative ruling and at the hearing, until the court issued a blanket ruling on the objections in two sentences.


• The objections failed to comply with California Rules of Court, rule 3.1354.


• Some of the objections were made to plaintiff's brief, not his evidence.

In its remarks, the court noted that since the summary judgment procedure is no longer disfavored as it once was, some have expressed concern that we have moved too far in the other direction, particularly in employment cases.  The court concluded, "The incredible volume of material here simply has no place in a system where overburdened trial courts labor long and hard."  It suggested that in the future trial courts could exercise their inherent power to deal with such situations.

This case publicizes the horror stories involving such motions.  United probably paid a lot of money for the attorneys' work product.  But even the appellate court noted, it was not the first time the defendants' lead counsel had been criticized for a defective separate statement.