BILL ANALYSIS
AB 2202
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Date of Hearing: March 23, 2004
ASSEMBLY COMMITTEE ON JUDICIARY
Ellen M. Corbett, Chair
AB 2202 (Pacheco) - As Introduced: February 18, 2004
SUBJECT : SUMMARY JUDGMENT: TIME PERIODS
KEY ISSUE : SHOULD THE TIME PERIODS FOR FILING SUMMARY JUDGMENT
MOTIONS BE REVISED TO PROVIDE MORE TIME FOR PARTIES WHO SEEK
SUMMARY JUDGMENT (TYPICALLY DEFENDANTS) IF THE COURT SO ORDERS
OR THE PARTIES AGREE?
SYNOPSIS
The summary judgment statute, as amended by SB 688 (Burton and
Wesson), Ch. 448 of 2002, gives parties opposing the motion 75
days notice and an opportunity to file opposition papers prior
to the hearing. This period cannot be reduced by the court.
Supporters of this bill, sponsored by the California Defense
Counsel, take issue with SB 688 and argue that it can work
unjust results by making it difficult or impossible to file a
summary judgment motion when such a motion is warranted. In
opposition, the Consumer Attorneys of California argue that it
is appropriate that every party opposing summary judgment has a
specified minimum period in which to do so. CAOC further argues
that existing rules, as recently strengthened by the Judicial
Council, account for SB 688 and are sufficient to give the court
discretion in setting trial dates and granting continuances to
avoid any potentially harsh results.
SUMMARY : Revises the time periods for filing summary judgment
motions. Specifically, this bill allows parties moving for
summary judgment additional time in which to file the motion if
the court decides there is good cause or the parties so agree.
EXISTING LAW:
1)Provides a court the authority to dismiss any civil action
without a trial if the court finds that there is no genuine
issue of material fact. (Code of Civil Procedure Section
437c(g).)
2)Allows a party who wishes to seek summary judgment to file
such a motion within 75 days before the time appointed for the
hearing. (Code of Civil Procedure Section 437c(a).)
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3)Requires the party opposing a motion for summary judgment to
file the opposition not less than 14 days before the hearing.
(Code of Civil Procedure Section 437c(b)(2).)
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
COMMENTS : The author states that the Second District Court of
Appeal recently held in McMahon v. Superior Court, 106 Cal. App.
4th 112 (2003) that judges do not have authority to change the
75-day filing period required by the summary judgment statute.
The sponsor, California Defense Counsel, an association of
lawyers specializing in civil litigation defense, argues that
this ruling makes it difficult or impossible to file motions for
summary judgment in certain meritorious cases. The sponsor
points to Code of Civil Procedure section 2034, providing that
the exchange of information regarding expert witnesses does not
occur until 50 days before trial, by which time it is too late
to file a motion for summary judgment. CDC states, "The
practical effect of the conflict between the timeframes in CCP
437c and 2034 is to force counsel to seek relief by filing a
motion to continue the trial date. California Rule of Court 375
indicates that while such motions should be considered on their
individual merits, trial dates should be considered firm, and
continuances are disfavored."
The Civil Justice Association of California supports the bill,
focusing its arguments primarily on the 75-day time period for
summary judgment motions as established by SB 688 (Burton and
Wesson), Ch. 448, Stats 2002. CJAC argues that the 75-day
period "fouled the process for filing motions for summary
judgment," contending that it "provides the plaintiff greater
opportunity for gamesmanship" and "interferes with the court's
ability to process cases under the Delay Reduction Act or
Fasttrack system."
The California Association of Health Facilities also supports
the bill, and takes issue with SB 688. CAHF states, "Whatever
can be done to enhance [the availability of summary judgment] is
in the public interest; however, legislation (SB 688/Burton)
that was passed in 2002 expanded the notice required to be given
the opposing party from 28 days to 75 days. This has made it
more difficult to bring a summary judgment motion." CAHF
argues, "Litigants are frequently down to the last few days when
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filing such motions under the current notice rule, especially
given the other time limitations applicable to summary
judgment."
Likewise, the American Electronics Association argues that "AB
2202 would take a small step to mitigate the problem [i.e., a
party seeking summary judgment has less time to complete
discovery before bringing the motion] created by the enactment
of SB 688?."
Was the Legislature Reasonable In Its Determination That Parties
Opposing Dismissal Of Their Claims Should Be Entitled To A
Certain Minimum Time Period In Which To Prepare Their Defense?
As the sponsor correctly notes, the 75-day summary judgment
notice period has been held to be beyond the power of a judge to
shorten. In McMahon v. Superior Court, 106 Cal. App. 4th 112,
115 (2003), the court observed that the summary judgment statute
contains three minimum time requirements: a 60-day period
regarding when the motion may first be filed; a 75-day period by
which the motion must be filed; and a 30-day period by which the
motion must be heard. Construing the plain language of the
statute, the court held that it "gives trial courts discretion
to shorten only two of these time periods - the 60 days that
must have elapsed since the general appearance of a party
against whom the motion is directed before a summary judgment
motion can be filed, and the minimum 30 days before trial when a
summary judgment motion can be heard. The subdivision does not
contain any language authorizing courts to shorten the 75-day
notice period."
The McMahon court went on to comment: "Because it is potentially
case dispositive and usually requires considerable time and
effort to prepare, a summary judgment motion is perhaps the most
important pretrial motion in a civil case. Therefore, the
Legislature was entitled to conclude that parties should be
afforded a minimum notice period for the hearing of summary
judgment motions so that they have sufficient time to assemble
the relevant evidence and prepare an adequate opposition."
(McMahon v. Superior Court, at 118.)
The facts of the McMahon case underscore the impact that
granting judges such discretion may have. There, the court
without explanation slashed the time for preparing the
plaintiffs' opposition from 75 days to 21 days. (McMahon v.
Superior Court, at 114.)
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Do The Summary Judgment Motion Time Periods Cause Conflicts That
Courts Cannot Fairly Resolve? The sponsor points to the 50-day
deadline before trial for designating expert witnesses as the
source of conflict causing summary judgment motions to be
impossible in some cases. This hypothetical necessarily arises
only if two conditions are met. First, the case must be one on
which the entire claim stands or falls on expert testimony, as
opposed to other evidence. Such cases, while not inconceivable,
are not common. Second, the expert testimony at issue must be
so unequivocal and one-sided as to leave no genuine issue as to
any material fact. Such cases, combining both conditions, are
rare.
Do the rules nevertheless hamstring judges in the prudent
administration of cases in light of the court's goals to advance
civil litigation to a speedy conclusion? Concern about the
impact of delay-reduction rules, or so-called "fasttrack" case
processing standards, including their impact on motion practice,
caused the Judicial Council to appoint a Blue-Ribbon Task Force
last year to study the issue. Comprising representatives of
both the plaintiff and defense bars as well as judges, the task
force unanimously elected to respond to the issue by revising
the Rules of Court and Standards of Judicial Administration to
make clear that in setting a case for trial the court must
consider all facts and circumstances relevant to the case,
including the nature and extent of law and motion proceedings
anticipated, and including specifically whether any summary
judgment motions will be filed. (Rules of Court 213 (j)(15).)
In addition, the Task Force drafted a new rule regarding
continuance of trial dates to make clear that, although not
favored, a continuance is to be granted for good cause,
including the absence of discovery (such as expert witness
issues), and that the court must consider all the facts and
circumstances relevant to the fair determination of the motion,
including the interests of justice and any prejudice to the
parties. This rule is believed to be sound guidance allowing
courts to consider every set of circumstances justifying a
continuance. Finally, the Task Force also rewrote the rules
regarding trial target dates, somewhat reducing the pressure to
schedule trials within one year and thus providing a longer
period of time in which to file a summary judgment motion.
Current Law Allows Parties To Shorten The Summary Judgment Time
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Period By Mutual Agreement. Although judges do not have the
authority to impose a reduced time period for the summary
judgment motion, the sponsor has not suggested or cited
authority holding that the parties could not do so by mutual
agreement. Indeed, such stipulations are common in civil
litigation and routinely honored.
ARGUMENTS IN OPPOSITION: The Consumer Attorneys of California
writes in opposition that AB 2202 would "effectively roll back
the important protections" established by SB 688. CAOC states,
"Last year court rules were relaxed to permit parties to seek
continuances of trial dates. We understand that defense counsel
were concerned about the ability of a defendant who was served
late in a case to have adequate time to file a motion for
summary judgment. The liberalized continuance process should
provide some relief under those circumstances." CAOC adds,
"Further, it is our understanding that parties can, under
existing law, stipulate to a shorter time period. Therefore the
proposed changes are unnecessary."
Prior/Pending Related Legislation. AB 2211 (Plescia), scheduled
for hearing before the Committee today, proposes to revise the
summary judgment time periods to give parties filing the motion
more time, and parties opposing the motion less time, to prepare
and file their papers.
REGISTERED SUPPORT / OPPOSITION :
Support
California Defense Counsel (sponsor)
American Electronics Association
California Association of Health Facilities
Civil Justice Association of California
Opposition
Consumer Attorneys of California
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334