AB 715, as amended, Dickinson. Summary judgment: rulings on admissibility of evidence: de novo standard of review.
Existing law authorizes a party, pursuant to a specified procedure, to move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding. Existing law requires the motion to be supported by, and provides that any opposition to the motion shall consist of, affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken. Upon a court’s order granting summary judgment, existing law authorizes a party to appeal from the judgment, as specified.
This bill wouldbegin delete requireend deletebegin insert authorizeend insert a reviewing court
to review a ruling on the admissibility of evidence in the summary judgment proceeding using a de novo standard of review.
Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.
The people of the State of California do enact as follows:
Section 437c of the Code of Civil Procedure, as
2amended by Section 3 of Chapter 419 of the Statutes of 2011, is
3amended to read:
(a) Any party may move for summary judgment in any
5action or proceeding if it is contended that the action has no merit
6or that there is no defense to the action or proceeding. The motion
7may be made at any time after 60 days have elapsed since the
8general appearance in the action or proceeding of each party against
9whom the motion is directed or at any earlier time after the general
10appearance that the court, with or without notice and upon good
11cause shown, may direct. Notice of the motion and supporting
12papers shall be served on all other parties to the action at least 75
13days before the time appointed for hearing. However, if the notice
14is served by mail, the required 75-day period of notice shall be
15increased by five days if the place of address
is within the State
16of California, 10 days if the place of address is outside the State
17of California but within the United States, and 20 days if the place
18of address is outside the United States, and if the notice is served
19by facsimile transmission, Express Mail, or another method of
20delivery providing for overnight delivery, the required 75-day
21period of notice shall be increased by two court days. The motion
22shall be heard no later than 30 days before the date of trial, unless
23the court for good cause orders otherwise. The filing of the motion
24shall not extend the time within which a party must otherwise file
25a responsive pleading.
26(b) (1) The motion shall be supported by affidavits, declarations,
27admissions, answers to interrogatories, depositions, and matters
28of which judicial notice shall or may be taken. The
supporting
29papers shall include a separate statement setting forth plainly and
30concisely all material facts which the moving party contends are
31undisputed. Each of the material facts stated shall be followed by
32a reference to the supporting evidence. The failure to comply with
33this requirement of a separate statement may in the court’s
34discretion constitute a sufficient ground for denial of the motion.
35(2) Any opposition to the motion shall be served and filed not
36less than 14 days preceding the noticed or continued date of
37hearing, unless the court for good cause orders otherwise. The
38opposition, where appropriate, shall consist of affidavits,
P3 1declarations, admissions, answers to interrogatories, depositions,
2and matters of which judicial notice shall or may be taken.
3(3) The opposition papers shall include a separate statement
4that responds to each of the material facts contended by the moving
5party to be undisputed, indicating whether the opposing party
6agrees or disagrees that those facts are undisputed. The statement
7also shall set forth plainly and concisely any other material facts
8that the opposing party contends are disputed. Each material fact
9contended by the opposing party to be disputed shall be followed
10by a reference to the supporting evidence. Failure to comply with
11this requirement of a separate statement may constitute a sufficient
12ground, in the court’s discretion, for granting the motion.
13(4) Any reply to the opposition shall be served and filed by the
14moving party not less than five days preceding the noticed or
15continued date of hearing, unless the court for good cause orders
16otherwise.
17(5) Evidentiary objections not made at the hearing shall be
18deemed waived.
19(6) Except for subdivision (c) of Section 1005 relating to the
20method of service of opposition and reply papers, Sections 1005
21and 1013, extending the time within which a right may be exercised
22or an act may be done, do not apply to this section.
23(7) Any incorporation by reference of matter in the court’s file
24shall set forth with specificity the exact matter to which reference
25is being made and shall not incorporate the entire file.
26(c) The motion for summary judgment shall be granted if all
27the papers submitted show that there is no triable issue as to any
28material fact and that the
moving party is entitled to a judgment
29as a matter of law. In determining whether the papers show that
30there is no triable issue as to any material fact the court shall
31consider all of the evidence set forth in the papers, except that to
32which objections have been made and sustained by the court, and
33all inferences reasonably deducible from the evidence, except
34summary judgment may not be granted by the court based on
35inferences reasonably deducible from the evidence, if contradicted
36by other inferences or evidence, which raise a triable issue as to
37any material fact.
38(d) Supporting and opposing affidavits or declarations shall be
39made by any person on personal knowledge, shall set forth
40admissible evidence, and shall show affirmatively that the affiant
P4 1is competent to testify to the matters stated in the affidavits or
2declarations.
Any objections based on the failure to comply with
3the requirements of this subdivision shall be made at the hearing
4or shall be deemed waived.
5(e) If a party is otherwise entitled to a summary judgment
6pursuant to this section, summary judgment may not be denied on
7grounds of credibility or for want of cross-examination of witnesses
8furnishing affidavits or declarations in support of the summary
9judgment, except that summary judgment may be denied in the
10discretion of the court, where the only proof of a material fact
11offered in support of the summary judgment is an affidavit or
12declaration made by an individual who was the sole witness to that
13fact, or where a material fact is an individual’s state of mind, or
14lack thereof, and that fact is sought to be established solely by the
15individual’s affirmation thereof.
16(f) (1) A party may move for summary adjudication as to one
17or more causes of action within an action, one or more affirmative
18defenses, one or more claims for damages, or one or more issues
19of duty, if that party contends that the cause of action has no merit
20or that there is no affirmative defense thereto, or that there is no
21merit to an affirmative defense as to any cause of action, or both,
22or that there is no merit to a claim for damages, as specified in
23Section 3294 of the Civil Code, or that one or more defendants
24either owed or did not owe a duty to the plaintiff or plaintiffs. A
25motion for summary adjudication shall be granted only if it
26completely disposes of a cause of action, an affirmative defense,
27a claim for damages, or an issue of duty.
28(2) A
motion for summary adjudication may be made by itself
29or as an alternative to a motion for summary judgment and shall
30proceed in all procedural respects as a motion for summary
31judgment. However, a party may not move for summary judgment
32based on issues asserted in a prior motion for summary adjudication
33and denied by the court, unless that party establishes to the
34satisfaction of the court, newly discovered facts or circumstances
35or a change of law supporting the issues reasserted in the summary
36judgment motion.
37(g) Upon the denial of a motion for summary judgment, on the
38ground that there is a triable issue as to one or more material facts,
39the court shall, by written or oral order, specify one or more
40material facts raised by the motion as to which the court has
P5 1determined there exists a triable controversy. This determination
2shall
specifically refer to the evidence proffered in support of and
3in opposition to the motion which indicates that a triable
4controversy exists. Upon the grant of a motion for summary
5judgment, on the ground that there is no triable issue of material
6fact, the court shall, by written or oral order, specify the reasons
7for its determination. The order shall specifically refer to the
8evidence proffered in support of, andbegin insert,end insert if applicablebegin insert,end insert in opposition
9to, the motion which indicates that no triable issue exists. The court
10shall also state its reasons for any other determination. The court
11shall record its determination by court reporter or written order.
12(h) If it
appears from the affidavits submitted in opposition to
13a motion for summary judgment or summary adjudicationbegin insert,end insert or bothbegin insert,end insert
14 that facts essential to justify opposition may exist but cannot, for
15reasons stated, then be presented, the court shall deny thebegin delete motion,end delete
16begin insert motionend insert or order a continuance to permit affidavits to be obtained
17or discovery to be hadbegin insert,end insert or may make any other order as may be
18just. The application to continue the motion to obtain necessary
19discovery
may also be made by ex parte motion at any time on or
20before the date the opposition response to the motion is due.
21(i) If, after granting a continuance to allow specified additional
22discovery, the court determines that the party seeking summary
23judgment has unreasonably failed to allow the discovery to be
24conducted, the court shall grant a continuance to permit the
25discovery to go forward or deny the motion for summary judgment
26or summary adjudication. This section does not affect or limit the
27ability of any party to compel discovery under the Civil Discovery
28Act (Title 4 (commencing with Section 2016.010) of Part 4).
29(j) If the court determines at any time that any of the affidavits
30are presented in bad faith or solely for purposes of delay, the court
31shall order the party presenting
the affidavits to pay the other party
32the amount of the reasonable expenses which the filing of the
33affidavits caused the other party to incur. Sanctions may not be
34imposed pursuant to this subdivision, except on notice contained
35in a party’s papers, or on the court’s own noticed motion, and after
36an opportunity to be heard.
37(k) Except when a separate judgment may properly be awarded
38in the action, no final judgment may be entered on a motion for
39summary judgment prior to the termination of the action, but the
40final judgment shall, in addition to any matters determined in the
P6 1action, award judgment as established by the summary proceeding
2herein provided for.
3(l) In actions which arise out of an injury to the person or to
4property, if a motion for summary judgment was
granted on the
5basis that the defendant was without fault, no other defendant
6during trial, over plaintiff’s objection, may attempt to attribute
7fault to or comment on the absence or involvement of the defendant
8who was granted the motion.
9(m) A summary judgment entered under this section is an
10appealable judgment as in other cases. Upon entry of any order
11pursuant to this section, except the entry of summary judgment, a
12party may, within 20 days after service upon him or her of a written
13notice of entry of the order, petition an appropriate reviewing court
14for a peremptory writ. If the notice is served by mail, the initial
15period within which to file the petition shall be increased by five
16days if the place of address is within the State of California, 10
17days if the place of address is outside the State of California but
18within the
United States, and 20 days if the place of address is
19outside the United States. If the notice is served by facsimile
20transmission, Express Mail, or another method of delivery
21providing for overnight delivery, the initial period within which
22to file the petition shall be increased by two court days. The
23superior court may, for good cause, and prior to the expiration of
24the initial period, extend the time for one additional period not to
25exceed 10 days.
26(1) A reviewing courtbegin delete shallend deletebegin insert mayend insert review a ruling on the
27admissibility of evidence pursuant to this section using a de novo
28standard of review.
29(2) Before a
reviewing court affirms an order granting summary
30judgment or summary adjudication on a ground not relied upon
31by the trial court, the reviewing court shall afford the parties an
32opportunity to present their views on the issue by submitting
33supplemental briefs. The supplemental briefing may include an
34argument that additional evidence relating to that ground exists,
35but that the party has not had an adequate opportunity to present
36the evidence or to conduct discovery on the issue. The court may
37reverse or remand based upon the supplemental briefing to allow
38the parties to present additional evidence or to conduct discovery
39on the issue. If the court fails to allow supplemental briefing, a
40rehearing shall be ordered upon timely petition of any party.
P7 1(n) (1) If a motion for summary adjudication is granted, at the
2trial
of the action, the cause or causes of action within the action,
3affirmative defense or defenses, claim for damages, or issue or
4issues of duty as to the motion which has been granted shall be
5deemed to be established and the action shall proceed as to the
6cause or causes of action, affirmative defense or defenses, claim
7for damages, or issue or issues of duty remaining.
8(2) In the trial of the action, the fact that a motion for summary
9adjudication is granted as to one or more causes of action,
10affirmative defenses, claims for damages, or issues of duty within
11the action shall not operate to bar any cause of action, affirmative
12defense, claim for damages, or issue of duty as to which summary
13adjudication was either not sought or denied.
14(3) In the trial of an action, neither a party, nor a
witness, nor
15the court shall comment upon the grant or denial of a motion for
16summary adjudication to a jury.
17(o) A cause of action has no merit if either of the following
18exists:
19(1) One or more of the elements of the cause of action cannot
20be separately established, even if that element is separately pleaded.
21(2) A defendant establishes an affirmative defense to that cause
22of action.
23(p) For purposes of motions for summary judgment and
24summary adjudication:
25(1) A plaintiff or cross-complainant has met his or her burden
26of showing that there is no defense to a cause of action if that party
27
has proved each element of the cause of action entitling the party
28to judgment on that cause of action. Once the plaintiff or
29cross-complainant has met that burden, the burden shifts to the
30defendant or cross-defendant to show that a triable issue of one or
31more material facts exists as to that cause of action or a defense
32thereto. The defendant or cross-defendant may not rely upon the
33mere allegations or denials of its pleadings to show that a triable
34issue of material fact exists but, instead, shall set forth the specific
35facts showing that a triable issue of material fact exists as to that
36cause of action or a defense thereto.
37(2) A defendant or cross-defendant has met his or her burden
38of showing that a cause of action has no merit if that party has
39shown that one or more elements of the cause of action, even if
40not
separately pleaded, cannot be established, or that there is a
P8 1complete defense to that cause of action. Once the defendant or
2cross-defendant has met that burden, the burden shifts to the
3plaintiff or cross-complainant to show that a triable issue of one
4or more material facts exists as to that cause of action or a defense
5thereto. The plaintiff or cross-complainant may not rely upon the
6mere allegations or denials of its pleadings to show that a triable
7issue of material fact exists but, instead, shall set forth the specific
8facts showing that a triable issue of material fact exists as to that
9cause of action or a defense thereto.
10(q) This section does not extend the period for trial provided by
11Section 1170.5.
12(r) Subdivisions (a) and (b) do not apply to actions brought
13pursuant
to Chapter 4 (commencing with Section 1159) of Title 3
14of Part 3.
15(s) (1) Notwithstanding subdivision (f), a party may move for
16summary adjudication of a legal issue or a claim for damages other
17than punitive damages that does not completely dispose of a cause
18of action, an affirmative defense, or an issue of duty.
19(2) This motion may be brought only upon the stipulation of
20the parties whose claims or defenses are put at issue by the motion
21and a prior determination and order by the court that the motion
22will further the interests of judicial economy, by reducing the time
23to be consumed in trial, or significantly increase the ability of the
24parties to resolve the case by settlement.
25(3) Before a
motion may be filed pursuant to this subdivision,
26the parties shall submit to the court a joint stipulation clearly setting
27forth the issue or issues to be adjudicated, with a declaration from
28each stipulating party demonstrating that a ruling on the motion
29will further the interests of judicial economy by reducing the time
30to be consumed in trial or significantly increasing the probability
31of settlement. Within 15 days of the court’s receipt of the
32stipulation and declarations, unless the court has good cause for
33extending the time in which to make the determination, the court
34shall notify the submitting parties as to whether the motion may
35be filed. If the court elects not to allow the filing of the motion,
36the stipulating parties may request, and upon that request the court
37shall conduct, an informal conference with the stipulating parties
38to permit further evaluation of the proposed stipulation; but no
39
further papers may be filed by the parties in support of the proposed
40motion.
P9 1(4) Any motion for summary adjudication brought under this
2subdivision shall contain the following language, or its substantial
3equivalent, in the notice of motion:
4
5“This motion is made pursuant to subdivision (s) of Section 437c
6of the Code of Civil Procedure. The parties to this motion stipulate
7that the court shall hear the motion and that the resolution of this
8motion will either further the interests of judicial economy by
9reducing the time to be consumed in trial or significantly increase
10the ability of the parties to resolve the case by settlement.”
11
12(5) The notice of motion shall be signed by counsel for all
13parties, and by those parties in propia persona, to the motion.
14(6) The joint stipulation shall be served on all parties, if any,
15who are not parties to the motion specified in paragraph (1). If,
16within 10 days of the submission of the stipulation, any
17nonstipulating party files an objection to the determination of the
18issue, the court may consider the objection in determining whether
19or not to allow the motion to be filed.
20(7) A motion for summary adjudication brought pursuant to this
21subdivision may be made by itself or as an alternative to a motion
22for summary judgment and shall proceed in all procedural respects
23as a motion for summary judgment.
24(t) Forbegin delete theend delete purposes of this section, a change in law does not
25include a later enacted statute without retroactive application.
26(u) This section shall remain in effect only until January 1, 2015,
27and as of that date is repealed, unless a later enacted statute, that
28is enacted before January 1, 2015, deletes or extends that date.
Section 437c of the Code of Civil Procedure, as added
30by Section 4 of Chapter 419 of the Statutes of 2011, is amended
31to read:
(a) Any party may move for summary judgment in any
33action or proceeding if it is contended that the action has no merit
34or that there is no defense to the action or proceeding. The motion
35may be made at any time after 60 days have elapsed since the
36general appearance in the action or proceeding of each party against
37whom the motion is directed or at any earlier time after the general
38appearance that the court, with or without notice and upon good
39cause shown, may direct. Notice of the motion and supporting
40papers shall be served on all other parties to the action at least 75
P10 1days before the time appointed for hearing. However, if the notice
2is served by mail, the required 75-day period of notice shall be
3increased by five days if the place
of address is within the State
4of California, 10 days if the place of address is outside the State
5of California but within the United States, and 20 days if the place
6of address is outside the United States, and if the notice is served
7by facsimile transmission, Express Mail, or another method of
8delivery providing for overnight delivery, the required 75-day
9period of notice shall be increased by two court days. The motion
10shall be heard no later than 30 days before the date of trial, unless
11the court for good cause orders otherwise. The filing of the motion
12shall not extend the time within which a party must otherwise file
13a responsive pleading.
14(b) (1) The motion shall be supported by affidavits, declarations,
15admissions, answers to interrogatories, depositions, and matters
16of which judicial notice shall or may be taken.
The supporting
17papers shall include a separate statement setting forth plainly and
18concisely all material facts which the moving party contends are
19undisputed. Each of the material facts stated shall be followed by
20a reference to the supporting evidence. The failure to comply with
21this requirement of a separate statement may in the court’s
22discretion constitute a sufficient ground for denial of the motion.
23(2) Any opposition to the motion shall be served and filed not
24less than 14 days preceding the noticed or continued date of
25hearing, unless the court for good cause orders otherwise. The
26opposition, where appropriate, shall consist of affidavits,
27declarations, admissions, answers to interrogatories, depositions,
28and matters of which judicial notice shall or may be taken.
29(3) The opposition papers shall include a separate statement
30that responds to each of the material facts contended by the moving
31party to be undisputed, indicating whether the opposing party
32agrees or disagrees that those facts are undisputed. The statement
33also shall set forth plainly and concisely any other material facts
34that the opposing party contends are disputed. Each material fact
35contended by the opposing party to be disputed shall be followed
36by a reference to the supporting evidence. Failure to comply with
37this requirement of a separate statement may constitute a sufficient
38ground, in the court’s discretion, for granting the motion.
39(4) Any reply to the opposition shall be served and filed by the
40moving party not less than five days preceding the noticed or
P11 1continued date of hearing, unless the court for good cause
orders
2otherwise.
3(5) Evidentiary objections not made at the hearing shall be
4deemed waived.
5(6) Except for subdivision (c) of Section 1005 relating to the
6method of service of opposition and reply papers, Sections 1005
7and 1013, extending the time within which a right may be exercised
8or an act may be done, do not apply to this section.
9(7) Any incorporation by reference of matter in the court’s file
10shall set forth with specificity the exact matter to which reference
11is being made and shall not incorporate the entire file.
12(c) The motion for summary judgment shall be granted if all
13the papers submitted show that there is no triable issue as to any
14material
fact and that the moving party is entitled to a judgment
15as a matter of law. In determining whether the papers show that
16there is no triable issue as to any material fact the court shall
17consider all of the evidence set forth in the papers, except that to
18which objections have been made and sustained by the court, and
19all inferences reasonably deducible from the evidence, except
20summary judgment may not be granted by the court based on
21inferences reasonably deducible from the evidence, if contradicted
22by other inferences or evidence, which raise a triable issue as to
23any material fact.
24(d) Supporting and opposing affidavits or declarations shall be
25made by any person on personal knowledge, shall set forth
26admissible evidence, and shall show affirmatively that the affiant
27is competent to testify to the matters stated in the affidavits or
28declarations.
Any objections based on the failure to comply with
29the requirements of this subdivision shall be made at the hearing
30or shall be deemed waived.
31(e) If a party is otherwise entitled to a summary judgment
32pursuant to this section, summary judgment may not be denied on
33grounds of credibility or for want of cross-examination of witnesses
34furnishing affidavits or declarations in support of the summary
35judgment, except that summary judgment may be denied in the
36discretion of the court, where the only proof of a material fact
37offered in support of the summary judgment is an affidavit or
38declaration made by an individual who was the sole witness to that
39fact, or where a material fact is an individual’s state of mind, or
P12 1lack thereof, and that fact is sought to be established solely by the
2individual’s affirmation thereof.
3(f) (1) A party may move for summary adjudication as to one
4or more causes of action within an action, one or more affirmative
5defenses, one or more claims for damages, or one or more issues
6of duty, if that party contends that the cause of action has no merit
7or that there is no affirmative defense thereto, or that there is no
8merit to an affirmative defense as to any cause of action, or both,
9or that there is no merit to a claim for damages, as specified in
10Section 3294 of the Civil Code, or that one or more defendants
11either owed or did not owe a duty to the plaintiff or plaintiffs. A
12motion for summary adjudication shall be granted only if it
13completely disposes of a cause of action, an affirmative defense,
14a claim for damages, or an issue of duty.
15(2) A motion
for summary adjudication may be made by itself
16or as an alternative to a motion for summary judgment and shall
17proceed in all procedural respects as a motion for summary
18judgment. However, a party may not move for summary judgment
19based on issues asserted in a prior motion for summary adjudication
20and denied by the court, unless that party establishes to the
21satisfaction of the court, newly discovered facts or circumstances
22or a change of law supporting the issues reasserted in the summary
23judgment motion.
24(g) Upon the denial of a motion for summary judgment, on the
25ground that there is a triable issue as to one or more material facts,
26the court shall, by written or oral order, specify one or more
27material facts raised by the motion as to which the court has
28determined there exists a triable controversy. This determination
29shall
specifically refer to the evidence proffered in support of and
30in opposition to the motion which indicates that a triable
31controversy exists. Upon the grant of a motion for summary
32judgment, on the ground that there is no triable issue of material
33fact, the court shall, by written or oral order, specify the reasons
34for its determination. The order shall specifically refer to the
35evidence proffered in support of, andbegin insert,end insert if applicablebegin insert,end insert in opposition
36to, the motion which indicates that no triable issue exists. The court
37shall also state its reasons for any other determination. The court
38shall record its determination by court reporter or written order.
39(h) If
it appears from the affidavits submitted in opposition to
40a motion for summary judgment or summary adjudicationbegin insert,end insert or bothbegin insert,end insert
P13 1 that facts essential to justify opposition may exist but cannot, for
2reasons stated, then be presented, the court shall deny thebegin delete motion,end delete
3begin insert motionend insert or order a continuance to permit affidavits to be obtained
4or discovery to be hadbegin insert,end insert or may make any other order as may be
5just. The application to continue the motion to obtain necessary
6discovery
may also be made by ex parte motion at any time on or
7before the date the opposition response to the motion is due.
8(i) If, after granting a continuance to allow specified additional
9discovery, the court determines that the party seeking summary
10judgment has unreasonably failed to allow the discovery to be
11conducted, the court shall grant a continuance to permit the
12discovery to go forward or deny the motion for summary judgment
13or summary adjudication. This section does not affect or limit the
14ability of any party to compel discovery under the Civil Discovery
15Act (Title 4 (commencing with Section 2016.010) of Part 4).
16(j) If the court determines at any time that any of the affidavits
17are presented in bad faith or solely for purposes of delay, the court
18shall order the party presenting the
affidavits to pay the other party
19the amount of the reasonable expenses which the filing of the
20affidavits caused the other party to incur. Sanctions may not be
21imposed pursuant to this subdivision, except on notice contained
22in a party’s papers, or on the court’s own noticed motion, and after
23an opportunity to be heard.
24(k) Except when a separate judgment may properly be awarded
25in the action, no final judgment may be entered on a motion for
26summary judgment prior to the termination of the action, but the
27final judgment shall, in addition to any matters determined in the
28action, award judgment as established by the summary proceeding
29herein provided for.
30(l) In actions which arise out of an injury to the person or to
31property, if a motion for summary judgment was granted on the
32
basis that the defendant was without fault, no other defendant
33during trial, over plaintiff’s objection, may attempt to attribute
34fault to or comment on the absence or involvement of the defendant
35who was granted the motion.
36(m) A summary judgment entered under this section is an
37appealable judgment as in other cases. Upon entry of any order
38pursuant to this section, except the entry of summary judgment, a
39party may, within 20 days after service upon him or her of a written
40notice of entry of the order, petition an appropriate reviewing court
P14 1for a peremptory writ. If the notice is served by mail, the initial
2period within which to file the petition shall be increased by five
3days if the place of address is within the State of California, 10
4days if the place of address is outside the State of California but
5within the United
States, and 20 days if the place of address is
6outside the United States. If the notice is served by facsimile
7transmission, Express Mail, or another method of delivery
8providing for overnight delivery, the initial period within which
9to file the petition shall be increased by two court days. The
10superior court may, for good cause, and prior to the expiration of
11the initial period, extend the time for one additional period not to
12exceed 10 days.
13(1) A reviewing courtbegin delete shallend deletebegin insert mayend insert review a ruling on the
14admissibility of evidence pursuant to this section using a de novo
15standard of review.
16(2) Before a reviewing
court affirms an order granting summary
17judgment or summary adjudication on a ground not relied upon
18by the trial court, the reviewing court shall afford the parties an
19opportunity to present their views on the issue by submitting
20supplemental briefs. The supplemental briefing may include an
21argument that additional evidence relating to that ground exists,
22but that the party has not had an adequate opportunity to present
23the evidence or to conduct discovery on the issue. The court may
24reverse or remand based upon the supplemental briefing to allow
25the parties to present additional evidence or to conduct discovery
26on the issue. If the court fails to allow supplemental briefing, a
27rehearing shall be ordered upon timely petition of any party.
28(n) (1) If a motion for summary adjudication is granted, at the
29trial of the
action, the cause or causes of action within the action,
30affirmative defense or defenses, claim for damages, or issue or
31issues of duty as to the motion which has been granted shall be
32deemed to be established and the action shall proceed as to the
33cause or causes of action, affirmative defense or defenses, claim
34for damages, or issue or issues of duty remaining.
35(2) In the trial of the action, the fact that a motion for summary
36adjudication is granted as to one or more causes of action,
37affirmative defenses, claims for damages, or issues of duty within
38the action shall not operate to bar any cause of action, affirmative
39defense, claim for damages, or issue of duty as to which summary
40adjudication was either not sought or denied.
P15 1(3) In the trial of an action, neither a party,
nor a witness, nor
2the court shall comment upon the grant or denial of a motion for
3summary adjudication to a jury.
4(o) A cause of action has no merit if either of the following
5exists:
6(1) One or more of the elements of the cause of action cannot
7be separately established, even if that element is separately pleaded.
8(2) A defendant establishes an affirmative defense to that cause
9of action.
10(p) For purposes of motions for summary judgment and
11summary adjudication:
12(1) A plaintiff or cross-complainant has met his or her burden
13of showing that there is no defense to a cause of action if that party
14has
proved each element of the cause of action entitling the party
15to judgment on that cause of action. Once the plaintiff or
16cross-complainant has met that burden, the burden shifts to the
17defendant or cross-defendant to show that a triable issue of one or
18more material facts exists as to that cause of action or a defense
19thereto. The defendant or cross-defendant may not rely upon the
20mere allegations or denials of its pleadings to show that a triable
21issue of material fact exists but, instead, shall set forth the specific
22facts showing that a triable issue of material fact exists as to that
23cause of action or a defense thereto.
24(2) A defendant or cross-defendant has met his or her burden
25of showing that a cause of action has no merit if that party has
26shown that one or more elements of the cause of action, even if
27not separately pleaded, cannot
be established, or that there is a
28complete defense to that cause of action. Once the defendant or
29cross-defendant has met that burden, the burden shifts to the
30plaintiff or cross-complainant to show that a triable issue of one
31or more material facts exists as to that cause of action or a defense
32thereto. The plaintiff or cross-complainant may not rely upon the
33mere allegations or denials of its pleadings to show that a triable
34issue of material fact exists but, instead, shall set forth the specific
35facts showing that a triable issue of material fact exists as to that
36cause of action or a defense thereto.
37(q) This section does not extend the period for trial provided by
38Section 1170.5.
P16 1(r) Subdivisions (a) and (b) do not apply to actions brought
2pursuant to Chapter 4
(commencing with Section 1159) of Title 3
3of Part 3.
4(s) Forbegin delete theend delete
purposes of this section, a change in law does not
5include a later enacted statute without retroactive application.
6(t) This section shall become operative on January 1, 2015.
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