BILL NUMBER: SB 470 INTRODUCED
BILL TEXT
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:
SECTION 1. Section 437c of the Code of Civil Procedure is amended
to read:
437c. (a) Any 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 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, 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 which 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) Any 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) Any 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) Any 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,
evidence if contradicted by other inferences or
evidence, which evidence that raise a triable
issue as to any material fact.
(d) The court may, in its discretion, rule only on those
objections made to evidence that is material to the disposition of
the motion for summary judgment. Objections to evidence that are not
ruled on for purposes of the motion shall be preserved on appeal.
(d)
(e) Supporting and opposing affidavits or declarations
shall be made by any 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. Any
objections An objection based on the failure to
comply with the requirements of this subdivision shall be
made at the hearing or if not made at the hearing
shall be deemed waived.
(e)
(f) 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, where 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 where 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.
(f)
(g) (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, 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.
(g)
(h) Upon the denial of a motion for summary
judgment, 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
which that indicates that a triable
controversy exists. Upon the grant of a motion for summary
judgment, 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 of and, if applicable
applicable, in opposition to,
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.
(h)
(i) 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, 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.
(i)
(j) 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 any a party to compel
discovery under the Civil Discovery Act (Title 4 (commencing with
Section 2016.010) of Part 4).
(j)
(k) If the court determines at any time that
any of the affidavits are an affidavit was
presented in bad faith or solely for purposes
the purpose of delay, the court shall order the party
presenting who presented the
affidavits affidavit to pay the other party the
amount of the reasonable expenses which the filing of the
affidavits affidavit caused the other party to
incur. Sanctions may shall not be
imposed pursuant to this subdivision,
subdivision except on notice contained in a party's
papers, papers or on the court's own noticed
motion, and after an opportunity to be heard.
(k)
(l) Except when Unless
a separate judgment may properly be awarded in the action,
no a final judgment may
shall not be entered on a motion for summary
judgment prior to 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.
(l)
(m) In actions which arise
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.
(m)
(n) (1) A summary judgment entered under this section
is an appealable judgment as in other cases. Upon entry of
any 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 any a
party.
(n)
(o) (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, nor
a witness, nor the court shall comment to a jury
upon the grant or denial of a motion for summary adjudication
to a jury .
(o)
(p) 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.
(p)
(q) 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 may
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 may
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)
(r) This section does not extend the period for trial
provided by Section 1170.5.
(r)
(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.
(s)
(t) For the purposes of this
section, a change in law does not include a later enacted statute
without retroactive application.
(t) This section shall become operative on January 1, 2015.