Amended in Assembly May 28, 2015

Amended in Senate April 22, 2015

Senate Bill No. 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 amended, Jackson. Civil actions: summary begin delete judgment. end delete begin insert judgment and summary adjudication. end insert

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 begin delete law. end delete begin insert law, and to grant a motion for summary adjudication if the papers submitted show that there is no triable as to one or more material facts the adjudication of which will completely dispose of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. end insert In determining whether the papers show that there is no triable issue as to begin delete any end delete begin insert a end insert 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 provide that begin delete a end delete begin insert , in granting or denying a motion for summary judgment or summary adjudication, the end insert court need rule only on objections made to evidence that the court deems material to the disposition of the begin delete motion for summary judgment. end delete begin insert motion. end insert The bill would also provide that begin delete any and all end delete objections begin insert to evidence end insert not ruled on for purposes of the motion begin delete for summary judgment would be deemed overruled and end delete begin insert would be end insert preserved begin delete on appeal. end delete begin insert for appellate review. end insert

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:

SECTION 1.  

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

437c.  

(a) A party may 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. The motion
may be made at any time after 60 days have elapsed since the
general appearance in the action or proceeding of each party against
whom the motion is directed or at any earlier time after the general
appearance that the court, with or without notice and upon good
cause shown, may direct. Notice of the motion and supporting
papers shall be served on all other parties to the action at least 75
days before the time appointed for hearing. However, if the notice
is served by mail, the required 75-day period of notice shall be
increased by 5 days if the place of address is within the State of
California, 10 days if the place of address is outside the State of
California but within the United States, and 20 days if the place
of address is outside the United States, and if the notice is served
by facsimile transmission, Express Mail, or another method of
delivery providing for overnight delivery, the required 75-day
period of notice shall be increased by two court days. The motion
shall be heard no later than 30 days before the date of trial, unless
the court for good cause orders otherwise. The filing of the motion
shall not extend the time within which a party must otherwise file
a responsive pleading.

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

(2) An opposition to the motion shall be served and filed not
less than 14 days preceding the noticed or continued date of
hearing, unless the court for good cause orders otherwise. The
opposition, where appropriate, shall consist of affidavits,
declarations, admissions, answers to interrogatories, depositions,
and matters of which judicial notice shall or may be taken.

(3) The opposition papers shall include a separate statement
that responds to each of the material facts contended by the moving
party to be undisputed, indicating whether the opposing party
agrees or disagrees that those facts are undisputed. The statement
also shall set forth plainly and concisely any other material facts
that the opposing party contends are disputed. Each material fact
contended by the opposing party to be disputed shall be followed
by a reference to the supporting evidence. Failure to comply with
this requirement of a separate statement may constitute a sufficient
ground, in the court’s discretion, for granting the motion.

(4) A reply to the opposition shall be served and filed by the
moving party not less than five days preceding the noticed or
continued date of hearing, unless the court for good cause orders
otherwise.

(5) Evidentiary objections not made at the hearing shall be
deemed waived.

(6) Except for subdivision (c) of Section 1005 relating to the
method of service of opposition and reply papers, Sections 1005
and 1013, extending the time within which a right may be exercised
or an act may be done, do not apply to this section.

(7) An incorporation by reference of a matter in the court’s file
shall set forth with specificity the exact matter to which reference
is being made and shall not incorporate the entire file.

(c) The motion for summary judgment shall be granted 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 the court shall
consider all of the evidence set forth in the papers, except that to
which objections have been made and sustained by the court, and
all inferences reasonably deducible from the evidence, except
summary judgment may not be granted by the court based on
inferences reasonably deducible from the evidence if contradicted
by other inferences or evidence that raise a triable issue as to any
material fact.

begin delete

(d) The court need rule only on those objections to evidence
that it deems material to its disposition of the motion for summary
judgment. Any and all objections not ruled on shall be deemed
overruled and preserved on appeal.

(e)

end delete

begin insert (d) end insert  Supporting and opposing affidavits or declarations shall be
made by a person on personal knowledge, shall set forth admissible
evidence, and shall show affirmatively that the affiant is competent
to testify to the matters stated in the affidavits or declarations. An
objection based on the failure to comply with the requirements of
this subdivision if not made at the hearing shall be deemed waived.

begin delete

(f)

end delete

begin insert (e) end insert  If a party is otherwise entitled to a summary judgment
pursuant to this section, summary judgment may not be denied on
grounds of credibility or for want of cross-examination of witnesses
furnishing affidavits or declarations in support of the summary
judgment, except that summary judgment may be denied in the
discretion of the court, if the only proof of a material fact offered
in support of the summary judgment is an affidavit or declaration
made by an individual who was the sole witness to that fact; or if
a material fact is an individual’s state of mind, or lack thereof, and
that fact is sought to be established solely by the individual’s
affirmation thereof.

begin delete

(g)

end delete

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

(2) A motion for summary adjudication may be made by itself
or as an alternative to a motion for summary judgment and shall
proceed in all procedural respects as a motion for summary
judgment. However, a party may not move for summary judgment
based on issues asserted in a prior motion for summary adjudication
and denied by the court unless that party establishes, to the
satisfaction of the court, newly discovered facts or circumstances
or a change of law supporting the issues reasserted in the summary
judgment motion.

begin delete

(h)

end delete

begin insert (g) end insert  Upon the denial of a motion for summary judgment on the
ground that there is a triable issue as to one or more material facts,
the court shall, by written or oral order, specify one or more
material facts raised by the motion as to which the court has
determined there exists a triable controversy. This determination
shall specifically refer to the evidence proffered in support of and
in opposition to the motion that indicates that a triable controversy
exists. Upon the grant of a motion for summary judgment on the
ground that there is no triable issue of material fact, the court shall,
by written or oral order, specify the reasons for its determination.
The order shall specifically refer to the evidence proffered in
support of and, if applicable, in opposition to the motion which
indicates that no triable issue exists. The court shall also state its
reasons for any other determination. The court shall record its
determination by court reporter or written order.

begin delete

(i)

end delete

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

begin delete

(j)

end delete

begin insert (i) end insert  If, after granting a continuance to allow specified additional
discovery, the court determines that the party seeking summary
judgment has unreasonably failed to allow the discovery to be
conducted, the court shall grant a continuance to permit the
discovery to go forward or deny the motion for summary judgment
or summary adjudication. This section does not affect or limit the
ability of a party to compel discovery under the Civil Discovery
Act (Title 4 (commencing with Section 2016.010) of Part 4).

begin delete

(k)

end delete

begin insert (j) end insert  If the court determines at any time that an affidavit was
presented in bad faith or solely for the purpose of delay, the court
shall order the party who presented the affidavit to pay the other
party the amount of the reasonable expenses which the filing of
the affidavit caused the other party to incur. Sanctions shall not
be imposed pursuant to this subdivision except on notice contained
in a party’s papers or on the court’s own noticed motion, and after
an opportunity to be heard.

begin delete

(l)

end delete

begin insert (k) end insert  Unless a separate judgment may properly be awarded in the
action, a final judgment shall not be entered on a motion for
summary judgment before the termination of the action, but the
final judgment shall, in addition to any matters determined in the
action, award judgment as established by the summary proceeding
herein provided for.

begin delete

(m)

end delete

begin insert (l) end insert  In actions arising out of an injury to the person or to property,
if a motion for summary judgment was granted on the basis that
the defendant was without fault, no other defendant during trial,
over plaintiff’s objection, may attempt to attribute fault to or
comment on the absence or involvement of the defendant who was
granted the motion.

begin delete

(n)

end delete

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

(2) Before a reviewing court affirms an order granting summary
judgment or summary adjudication on a ground not relied upon
by the trial court, the reviewing court shall afford the parties an
opportunity to present their views on the issue by submitting
supplemental briefs. The supplemental briefing may include an
argument that additional evidence relating to that ground exists,
but that the party has not had an adequate opportunity to present
the evidence or to conduct discovery on the issue. The court may
reverse or remand based upon the supplemental briefing to allow
the parties to present additional evidence or to conduct discovery
on the issue. If the court fails to allow supplemental briefing, a
rehearing shall be ordered upon timely petition of a party.

begin delete

(o)

end delete

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

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

(3) In the trial of an action, neither a party, a witness, nor the
court shall comment to a jury upon the grant or denial of a motion
for summary adjudication.

begin delete

(p)

end delete

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

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

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

begin delete

(q)

end delete

begin insert (p) end insert  For purposes of motions for summary judgment and
summary adjudication:

(1) A plaintiff or cross-complainant has met his or her burden
of showing that there is no defense to a cause of action if that party
has proved each element of the cause of action entitling the party
to judgment on that cause of action. Once the plaintiff or
cross-complainant has met that burden, the burden shifts to the
defendant or cross-defendant to show that a triable issue of one or
more material facts exists as to that cause of action or a defense
thereto. The defendant or cross-defendant shall not rely upon the
mere allegations or denials of its pleadings to show that a triable
issue of material fact exists but, instead, shall set forth the specific
facts showing that a triable issue of material fact exists as to that
cause of action or a defense thereto.

(2) A defendant or cross-defendant has met his or her burden
of showing that a cause of action has no merit if that party has
shown that one or more elements of the cause of action, even if
not separately pleaded, cannot be established, or that there is a
complete defense to that cause of action. Once the defendant or
cross-defendant has met that burden, the burden shifts to the
plaintiff or cross-complainant to show that a triable issue of one
or more material facts exists as to that cause of action or a defense
thereto. The plaintiff or cross-complainant shall not rely upon the
mere allegations or denials of its pleadings to show that a triable
issue of material fact exists but, instead, shall set forth the specific
facts showing that a triable issue of material fact exists as to that
cause of action or a defense thereto.

begin insert

(q) In granting or denying a motion for summary judgment or
summary adjudication, the court need rule only on those objections
to evidence that it deems material to its disposition of the motion.
Objections to evidence that are not ruled on for purposes of the
motion shall be preserved for appellate review.

end insert

(r) This section does not extend the period for trial provided by
Section 1170.5.

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

(t) For purposes of this section, a change in law does not include
a later enacted statute without retroactive application.