Senate BillNo. 470


Introduced by Senator Jackson

February 25, 2015


An act to amend Section 437c of the Code of Civil Procedure, relating to civil actions.

LEGISLATIVE COUNSEL’S DIGEST

SB 470, as introduced, Jackson. Civil actions: summary judgment.

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 it and to move for summary adjudication as to certain issues in the action or proceeding. Existing law requires the court to grant a motion for summary judgment if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In determining whether the papers show that there is no triable issue as to any material fact, existing law requires the court to consider all of the evidence set forth in the papers, except evidence to which objections have been made and sustained by the court.

This bill would authorize a court, in its discretion, to rule only on objections made to evidence that is material to the disposition of the motion for summary judgment. The bill would provide that any objection not ruled on for purposes of the motion for summary judgment would be preserved on appeal.

The bill would also make nonsubstantive changes to the provisions.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

P2    1

SECTION 1.  

Section 437c of the Code of Civil Procedure is
2amended to read:

3

437c.  

(a) begin deleteAny end deletebegin insertA end insertparty may move for summary judgment in
4any action or proceeding if it is contended that the action has no
5merit or that there is no defense to the action or proceeding. The
6motion may be made at any time after 60 days have elapsed since
7the general appearance in the action or proceeding of each party
8against whom the motion is directed or at any earlier time after
9the general appearance that the court, with or without notice and
10upon good cause shown, may direct. Notice of the motion and
11supporting papers shall be served on all other parties to the action
12at least 75 days before the time appointed for hearing. However,
13if the notice is served by mail, the required 75-day period of notice
14shall be increased by five days if the place of address is within the
15State of California, 10 days if the place of address is outside the
16State of California but within the United States, and 20 days if the
17place of address is outside the United States, and if the notice is
18served by facsimile transmission, Express Mail, or another method
19of delivery providing for overnight delivery, the required 75-day
20period of notice shall be increased by two court days. The motion
21shall be heard no later than 30 days before the date of trial, unless
22the court for good cause orders otherwise. The filing of the motion
23shall not extend the time within which a party must otherwise file
24a responsive pleading.

25(b) (1) The motion shall be supported by affidavits, declarations,
26admissions, answers to interrogatories, depositions, and matters
27of which judicial notice shall or may be taken. The supporting
28papers shall include a separate statement setting forth plainly and
29concisely all material factsbegin delete whichend deletebegin insert thatend insert the moving party contends
30are undisputed. Each of the material facts stated shall be followed
31by a reference to the supporting evidence. The failure to comply
32with this requirement of a separate statement may in the court’s
33discretion constitute a sufficient ground for denial of the motion.

34(2) begin deleteAny end deletebegin insertAn end insertopposition to the motion shall be served and filed
35not less than 14 days preceding the noticed or continued date of
36hearing, unless the court for good cause orders otherwise. The
37opposition, 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) begin deleteAny end deletebegin insertA end insertreply to the opposition shall be served and filed by
14the moving 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) begin deleteAny end deletebegin insertAn end insertincorporation by reference ofbegin insert aend insert matter in the court’s
24file shall set forth with specificity the exact matter to which
25reference is 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 thebegin delete evidence,end deletebegin insert evidenceend insert if
36contradicted by other inferences orbegin delete evidence, whichend deletebegin insert evidence thatend insert
37 raise a triable issue as to any material fact.

begin insert

38(d) The court may, in its discretion, rule only on those objections
39made to evidence that is material to the disposition of the motion
P4    1for summary judgment. Objections to evidence that are not ruled
2on for purposes of the motion shall be preserved on appeal.

end insert
begin delete

3(d)

end delete

4begin insert(e)end insert Supporting and opposing affidavits or declarations shall be
5made bybegin delete anyend deletebegin insert aend insert person on personal knowledge, shall set forth
6admissible evidence, and shall show affirmatively that the affiant
7is competent to testify to the matters stated in the affidavits or
8declarations.begin delete Any objectionsend deletebegin insert An objectionend insert based on the failure to
9comply with the requirements of this subdivision shall bebegin delete made at
10the hearing orend delete
begin insert if not made at the hearingend insert shall be deemed waived.

begin delete

11(e)

end delete

12begin insert(f)end insert If a party is otherwise entitled to a summary judgment
13pursuant to this section, summary judgment may not be denied on
14grounds of credibility or for want of cross-examination of witnesses
15furnishing affidavits or declarations in support of the summary
16judgment, except that summary judgment may be denied in the
17discretion of the court,begin delete whereend deletebegin insert ifend insert the only proof of a material fact
18offered in support of the summary judgment is an affidavit or
19declaration made by an individual who was the sole witness to that
20fact; orbegin delete whereend deletebegin insert ifend insert a material fact is an individual’s state of mind, or
21lack thereof, and that fact is sought to be established solely by the
22individual’s affirmation thereof.

begin delete

23(f)

end delete

24begin insert(g)end insert (1) A party may move for summary adjudication as to one
25or more causes of action within an action, one or more affirmative
26defenses, one or more claims for damages, or one or more issues
27of duty, if that party contends that the cause of action has no merit
28or that there is no affirmative defense thereto, or that there is no
29merit to an affirmative defense as to any cause of action, or both,
30or that there is no merit to a claim for damages, as specified in
31Section 3294 of the Civil Code, or that one or more defendants
32either owed or did not owe a duty to the plaintiff or plaintiffs. A
33motion for summary adjudication shall be granted only if it
34completely disposes of a cause of action, an affirmative defense,
35a claim for damages, or an issue of duty.

36(2) A motion for summary adjudication may be made by itself
37or as an alternative to a motion for summary judgment and shall
38proceed in all procedural respects as a motion for summary
39judgment. However, a party may not move for summary judgment
40based on issues asserted in a prior motion for summary adjudication
P5    1and denied by thebegin delete court,end deletebegin insert courtend insert unless that party establishesbegin insert,end insert to the
2satisfaction of the court, newly discovered facts or circumstances
3or a change of law supporting the issues reasserted in the summary
4judgment motion.

begin delete

5(g)

end delete

6begin insert(h)end insert Upon the denial of a motion for summarybegin delete judgment,end delete
7begin insert judgmentend insert on the ground that there is a triable issue as to one or
8more material facts, the court shall, by written or oral order, specify
9one or more material facts raised by the motion as to which the
10court has determined there exists a triable controversy. This
11determination shall specifically refer to the evidence proffered in
12support of and in opposition to the motionbegin delete whichend deletebegin insert thatend insert indicates
13that a triable controversy exists. Upon the grant of a motion for
14summarybegin delete judgment,end deletebegin insert judgmentend insert on the ground that there is no triable
15issue of material fact, the court shall, by written or oral order,
16 specify the reasons for its determination. The order shall
17specifically refer to the evidence proffered in supportbegin delete of, andend deletebegin insert of
18and,end insert
ifbegin delete applicableend deletebegin insert applicable,end insert in oppositionbegin delete to,end deletebegin insert toend insert the motion which
19indicates that no triable issue exists. The court shall also state its
20reasons for any other determination. The court shall record its
21determination by court reporter or written order.

begin delete

22(h)

end delete

23begin insert(i)end insert If it appears from the affidavits submitted in opposition to a
24motion for summary judgment or summary adjudication or both
25that facts essential to justify opposition may exist but cannot, for
26reasons stated, then be presented, the court shall deny thebegin delete motion,end delete
27begin insert motionend insert or order a continuance to permit affidavits to be obtained
28or discovery to be hadbegin insert,end insert or may make any other order as may be
29just. The application to continue the motion to obtain necessary
30discovery may also be made by ex parte motion at any time on or
31before the date the opposition response to the motion is due.

begin delete

32(i)

end delete

33begin insert(j)end insert If, after granting a continuance to allow specified additional
34discovery, the court determines that the party seeking summary
35judgment has unreasonably failed to allow the discovery to be
36conducted, the court shall grant a continuance to permit the
37discovery to go forward or deny the motion for summary judgment
38or summary adjudication. This section does not affect or limit the
39ability ofbegin delete anyend deletebegin insert aend insert party to compel discovery under the Civil
P6    1Discovery Act (Title 4 (commencing with Section 2016.010) of
2Part 4).

begin delete

3(j)

end delete

4begin insert(k)end insert If the court determines at any time thatbegin delete any of the affidavits
5areend delete
begin insert an affidavit wasend insert presented in bad faith or solely forbegin delete purposesend delete
6begin insert the purposeend insert of delay, the court shall order the partybegin delete presentingend deletebegin insert who
7presentedend insert
thebegin delete affidavitsend deletebegin insert affidavitend insert to pay the other party the amount
8of the reasonable expenses which the filing of thebegin delete affidavitsend delete
9begin insert affidavitend insert caused the other party to incur. Sanctionsbegin delete mayend deletebegin insert shallend insert not
10be imposed pursuant to thisbegin delete subdivision,end deletebegin insert subdivisionend insert except on
11notice contained in a party’sbegin delete papers,end deletebegin insert papersend insert or on the court’s own
12noticed motion, and after an opportunity to be heard.

begin delete

13(k)

end delete

14begin insert(l)end insertbegin deleteExcept when end deletebegin insertUnless end inserta separate judgment may properly be
15awarded in the action,begin delete noend deletebegin insert aend insert final judgmentbegin delete mayend deletebegin insert shall notend insert be entered
16on a motion for summary judgmentbegin delete prior toend deletebegin insert beforeend insert the termination
17of the action, but the final judgment shall, in addition to any matters
18determined in the action, award judgment as established by the
19summary proceeding herein provided for.

begin delete

20(l)

end delete

21begin insert(m)end insert In actionsbegin delete which ariseend deletebegin insert arisingend insert out of an injury to the person
22or to property, if a motion for summary judgment was granted on
23the basis that the defendant was without fault, no other defendant
24during trial, over plaintiff’s objection, may attempt to attribute
25fault to or comment on the absence or involvement of the defendant
26who was granted the motion.

begin delete

27(m)

end delete

28begin insert(n)end insert (1) A summary judgment entered under this section is an
29appealable judgment as in other cases. Upon entry ofbegin delete anyend deletebegin insert anend insert order
30pursuant to this section, except the entry of summary judgment, a
31party may, within 20 days after service upon him or her of a written
32notice of entry of the order, petition an appropriate reviewing court
33for a peremptory writ. If the notice is served by mail, the initial
34period within which to file the petition shall be increased by five
35days if the place of address is within the State of California, 10
36days if the place of address is outside the State of California but
37within the United States, and 20 days if the place of address is
38outside the United States. If the notice is served by facsimile
39transmission, Express Mail, or another method of delivery
40providing for overnight delivery, the initial period within which
P7    1to file the petition shall be increased by two court days. The
2superior court may, for good cause, and prior to the expiration of
3the initial period, extend the time for one additional period not to
4exceed 10 days.

5(2) Before a reviewing court affirms an order granting summary
6judgment or summary adjudication on a ground not relied upon
7by the trial court, the reviewing court shall afford the parties an
8opportunity to present their views on the issue by submitting
9supplemental briefs. The supplemental briefing may include an
10argument that additional evidence relating to that ground exists,
11but that the party has not had an adequate opportunity to present
12the evidence or to conduct discovery on the issue. The court may
13reverse or remand based upon the supplemental briefing to allow
14the parties to present additional evidence or to conduct discovery
15on the issue. If the court fails to allow supplemental briefing, a
16rehearing shall be ordered upon timely petition ofbegin delete anyend deletebegin insert aend insert party.

begin delete

17(n)

end delete

18begin insert(o)end insert (1) If a motion for summary adjudication is granted, at the
19trial of the action, the cause or causes of action within the action,
20affirmative defense or defenses, claim for damages, or issue or
21issues of duty as to the motion which has been granted shall be
22deemed to be established and the action shall proceed as to the
23cause or causes of action, affirmative defense or defenses, claim
24for damages, or issue or issues of duty remaining.

25(2) In the trial of the action, the fact that a motion for summary
26adjudication is granted as to one or more causes of action,
27affirmative defenses, claims for damages, or issues of duty within
28the action shall not operate to bar any cause of action, affirmative
29defense, claim for damages, or issue of duty as to which summary
30adjudication was either not sought or denied.

31(3) In the trial of an action, neither a party,begin delete norend delete a witness, nor
32the court shall commentbegin insert to a juryend insert upon the grant or denial of a
33motion for summary adjudicationbegin delete to a juryend delete.

begin delete

34(o)

end delete

35begin insert(p)end insert A cause of action has no merit if either of the following
36exists:

37(1) One or more of the elements of the cause of action cannot
38be separately established, even if that element is separately pleaded.

39(2) A defendant establishes an affirmative defense to that cause
40of action.

begin delete

P8    1(p)

end delete

2begin insert(q)end insert For purposes of motions for summary judgment and
3summary adjudication:

4(1) A plaintiff or cross-complainant has met his or her burden
5of showing that there is no defense to a cause of action if that party
6has proved each element of the cause of action entitling the party
7to judgment on that cause of action. Once the plaintiff or
8cross-complainant has met that burden, the burden shifts to the
9defendant or cross-defendant to show that a triable issue of one or
10more material facts exists as to that cause of action or a defense
11thereto. The defendant or cross-defendantbegin delete mayend deletebegin insert shallend insert not rely upon
12the mere allegations or denials of its pleadings to show that a triable
13issue of material fact exists but, instead, shall set forth the specific
14facts showing that a triable issue of material fact exists as to that
15cause of action or a defense thereto.

16(2) A defendant or cross-defendant has met his or her burden
17of showing that a cause of action has no merit if that party has
18shown that one or more elements of the cause of action, even if
19not separately pleaded, cannot be established, or that there is a
20complete defense to that cause of action. Once the defendant or
21cross-defendant has met that burden, the burden shifts to the
22plaintiff or cross-complainant to show that a triable issue of one
23or more material facts exists as to that cause of action or a defense
24thereto. The plaintiff or cross-complainantbegin delete mayend deletebegin insert shallend insert not rely upon
25the mere allegations or denials of its pleadings to show that a triable
26issue of material fact exists but, instead, shall set forth the specific
27facts showing that a triable issue of material fact exists as to that
28cause of action or a defense thereto.

begin delete

29(q)

end delete

30begin insert(r)end insert This section does not extend the period for trial provided by
31Section 1170.5.

begin delete

32(r)

end delete

33begin insert(s)end insert Subdivisions (a) and (b) do not apply to actions brought
34pursuant to Chapter 4 (commencing with Section 1159) of Title 3
35of Part 3.

begin delete

36(s)

end delete

37begin insert(t)end insert Forbegin delete theend delete purposes of this section, a change in law does not
38include a later enacted statute without retroactive application.

begin delete

P9    1(t) This section shall become operative on January 1, 2015.

end delete


O

    99