Motions for Summary Judgment: The Separate Statement

The importance of the separate statement cannot be overlooked.  Some judges will immediately review the separate statements, hoping to find what facts are undisputed and those that are not.  Others will review it as the last document of the moving papers.

One of the biggest problems with preparing a separate statement is failing to make sure it includes all of the facts necessary to support the evidence and refers to the supporting evidence.  See California Rules of Court, Rule 3.1350(h) for the proper format.  In reviewing motions for summary judgment, I have found that facts may be included in the declarations or memorandum of points and authorities, but somehow they have failed to make their way into the separate statement.  “When a fact upon which plaintiff relies is not mentioned in the separate statement, it is irrelevant that such fact might be buried in the mound of paperwork filed with the trial court; the court does not have the burden to conduct a search for facts that counsel failed to bring out.”  (Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 116.)

In opposing the motion, an opposing party often fails to realize that the opposition separate statement serves different functions.  An opposition separate statement must respond to the material facts put forth in the moving papers as to whether the fact is undisputed or disputed.  If a fact is disputed, there should be a reference to supporting evidence.  (Code of Civil Procedure section 437c(b)(3); California Rules of Court, Rule 3.1350(f) and (h); Lewis v. County of Sacramento, supra, at p. 115.)  As a secondary and very important function, the opposition separate statement must identify any other material fact that is disputed and creates a triable issue.

Quite often an opposing attorney will simply respond to the separate statement prepared by the moving party.  But a separate statement is an opportunity to show triable issues exist that justify denial of the motion.  Of course, each fact must refer to the supporting evidence.  When I am asked to review a motion for summary judgment for summary judgment by the opposing party, the first question I ask is what are the triable issues of fact.  Then I look at the separate statement to confirm that they are listed.  The existence of triable issues should also be repeated in your introduction to your memorandum of points and authorities.  If it is not in either place, but scattered somewhere in your opposition papers, you have made the judge's task that much more difficult.  As I have said before, you should try to make it easy for the judge to deny your opponent's motion for summary judgment.