Motions for summary judgment and/or adjudication are primarily used by defendants to dispose of a particular cause of action or of an entire lawsuit. Plaintiff’s attorneys find themselves routinely opposing these motions in personal injury and employment cases. However, it is rare for plaintiffs to turn the tables and use this type of dispositive motion offensively to advance their own case. Although there is a growing number of attorneys bringing motions for summary adjudication (“MSA”) on behalf of plaintiffs, these motions generally remain either underutilized or not used to their full potential.
Below is a brief practical guide on how to maximize their potential.
Generally, under subsection (f)(1) of the California Code of Civil Procedure, an MSA can be brought to dispose of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. Take, for example, a case where the defendant driver in a collision has alleged in their answer to the complaint the affirmative defense of comparative fault (i.e., that plaintiff was in part at fault for causing the collision). During their depositions, however, the investigating police officer and the defendant driver testify that the defendant driver was the only person at fault for causing the collision. Filing an MSA on comparative fault can conclusively lay the issue of liability to rest, add value to your case, and communicate to the defense that the plaintiff is in capable hands. There is no need to wait until trial to have the positive effect of winning on this issue.
In some cases, there may be a legal issue you would like adjudicated before trial that falls short of an entire affirmative defense. In that situation, an MSA may be brought under subsection (t) of 437c, a relatively unknown provision of that statute, which allows the parties to adjudicate a legal issue that would not otherwise dispose entirely of an affirmative defense or cause of action. (CCP § 437c(t)). Note, however, that an MSA under subsection (t), unlike one brought under (f)(1), requires the moving party to first obtain leave of court before the MSA can be filed, and the motion for leave must be accompanied by a stipulation between the parties to the motion.
Once you have identified an issue in the case that lends itself to an MSA, whether an entire affirmative defense or a more discrete issue, begin with written discovery on that issue, specifically, by propounding requests for admission. For example, let’s assume you have targeted a particular affirmative defense, such as comparative fault, that you would like to adjudicate. Serve requests for admission pertaining to that affirmative defense. E.g.:
“Admit that YOU have no evidence to support your First Affirmative Defense of Comparative Fault”
“Admit Plaintiff did not cause the SUBJECT INCIDENT”
“Admit YOUR negligence was the sole cause of the SUBJECT INCIDENT”
Propounding RFAs is essential because any unreasonable denials set up cost of proof sanctions should you prevail in your MSA. “Cost of proof” sanctions are attorney’s fees that an attorney may recover for bringing the MSA so long as unequivocal denials to the RFAs were first obtained. (CCP § 2033.420 [If a defendant unreasonably denied an RFA, it will be ordered to pay the costs and fees incurred by the plaintiff in proving that matter].) If defendant does not provide unequivocal denials, therefore, you must move to compel further responses because cost of proof sanctions are only available when a responding party has fully denied an RFA. (CCP § 2033.420).
Be sure to include Form Interrogatories 17.1 to accompany your RFAs as defendant’s responses to these will later become an important part of your MSA. And if you haven’t done so, also propound Form Interrogatory 15.1. However, do not move to compel further responses on these. That is because any factually devoid responses to 15.1 and 17.1 play in your favor: a moving party may meet her initial burden of proof on MSA based on the opposing party’s factually devoid discovery responses alone. (Collin v. Calportland Company (2014) 228 Cal.App.4th 582, 587).
Once you have completed written discovery, and obtained the necessary documentary evidence and deposition testimony, there may be one more step to take before drafting the MSA. If the MSA is brought under subsection (f)(1) (which does not require a stipulation), first meet and confer with defense requesting that they stipulate on the issue of duty or a claim for damages, or in the case of an affirmative defense, that they amend their answer to remove the defense. Although meeting and conferring is not required in advance of an MSA, it is the reasonable thing to do and may yield fruitful results.
Although not every case lends itself to an MSA, it is a rare case that would not benefit from at least considering and analyzing which issues in the case should be the subject of an MSA.
Identifying important issues early on and developing evidence to support the motion can only be of benefit to trial preparation even if the plaintiff ultimately does not prevail on the MSA. It forces defense to reveal their theories and evidence, and more often than not, it catches them completely by surprise. A strong meet and confer letter alone, outlining the evidence, the risk of cost of proof sanctions, and expressing your resolve to pursue the motion, may be sufficient to get an early concession in the case, such as an admission of liability, thereby streamlining the case for trial and potentially enhancing its settlement value.
