BILL NUMBER: SB 470 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MAY 28, 2015
AMENDED IN SENATE APRIL 22, 2015
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
judgment. judgment and summary adjudication.
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. 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. In
determining whether the papers show that there is no triable issue as
to any a 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 a , in
granting or denying a motion for summary judgment or summary
adjudication, the court need rule only on objections made to
evidence that the court deems material to the disposition of the
motion for summary judgment. motion.
The bill would also provide that any and all
objections to evidence not ruled on for purposes of the
motion for summary judgment would be deemed overruled and
would be preserved on appeal.
for appellate review.
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.
(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)
(d) 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.
(f)
(e) 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.
(g)
(f) (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.
(h)
(g) 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.
(i)
(h) 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.
(j)
(i) 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).
(k)
(j) 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.
(l)
(k) 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.
(m)
(l) 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.
(n)
(m) (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.
(o)
(n) (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.
(p)
(o) 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.
(q)
(p) 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.
(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.
(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.