Drafting an Effective Response to a Separate Statement of Undisputed Material Facts.

If you are opposing a Motion for Summary Judgment or Motion for Summary Adjudication, three techniques are especially helpful in drafting an effective Response to the moving party’s Separate Statement of Undisputed Material Facts.  First, object to the UMF if the UMF itself relies upon objectionable evidence.  Second, set forth abundant, admissible evidence that disputes and contradicts the UMF.  Third, rather than just summarizing your cited evidence, use exact quotations whenever possible.

Objecting to a UMF because the UMF is based is upon objectionable evidence is sound practice.  California Rule of Court 3.1354(b) prohibits from objecting to the evidence in a Response to Separate Statement: “All written objections to evidence must be served and filed separately from the other papers in support of or in opposition to the motion. Objections on specific evidence may be referenced by the objection number in the right column of a separate statement in opposition or reply to a motion, but the objections must not be restated or reargued in the separate statement.”  However, nothing prohibits a party from objecting to the “undisputed material fact” itself rather than the evidence.  This distinction is important.

CRC 3.1350(f) sets forth that the responding party is to set forth the “nature of the dispute” in the right-hand column of the Response to Separate Statement.  If the nature of the dispute is that the UMF is based upon unsound or objectionable evidence, it follows that such deficiencies should be set forth in the right-hand column.  Likewise, Code of Civil Procedure Section 437c(b)(3) provides that “the opposition papers shall include a separate statement that responds to each of the material facts contended by the moving party to be undisputed . . .”  Given the confusing and contradictory nature of the aforementioned rules, it is prudent within the Response to Separate Statement to object to any UMF’s that are based upon objectionable evidence.

Here is a sample from a Response to Moving Party’s Separate Statement where the objections to the UMF are set forth near the top of the right-hand column:

Moving Party’s “Undisputed Material Fact” & Supporting Evidence

Opposing Party’s Response to the Moving Party’s UMF.

 1. Manager X disciplined Plaintiff because Plaintiff showed poor business judgment when she violated company guidelines by letting the janitor leave work early.(Manager X’s Deposition, 259:23-261:7.) Disputed.Objection to UMF: The UMF improperly relies upon evidence that violates the Secondary Evidence Rule, lacks foundation, and is hearsay.  (See Plaintiff’s Objections to Evidence, Nos. 2 and 4.)The evidence cited by the moving party does not support the UMF.Defendant has not cited to any written “company guidelines” that Plaintiff has supposedly violated. (Defs.’ Motion for Summary Judgment, in passim.)

Plaintiff’s actions were in accordance with company policy that allowed a supervisor to let employees leave work early for medical appointments.  (Supervisor Declaration, para. 3-4, Plaintiff’s Depo, 120:2-20; Company Policy Handbook, page 6, lines 1-7.)

Company policy allows a supervisor to let employees leave early for medical appointments: “A supervisor may let an employee leave work early for a medical appointment if a doctor’s note is presented at that time.” (Company Policy Handbook, page 6, lines 1-7.)

Plaintiff was a supervisor at all relevant times. (Manager’s Deposition, 54:22-55:8; Plaintiff’s Deposition, 102:4-9.)

The janitor had a medical appointment on the date and time at issue.  (Janitor’s Declaration, para. 1-3; Exhibit 1 to Janitor’s Declaration [“Doctor’s Note”].)

The Janitor presented a doctor’s note reflecting that he had a medical appointment on the date and time at issue: “I gave Plaintiff supervisor my doctor’s note and told her that I had to leave for my heart examination.” (Janitor’s Declaration, pg. 1, para. 3-6; Exhibit 1 to Janitor’s Declaration [“Doctor’s Note”])

Normal custom and practice at company was to let employees leave early if they had a doctor’s note for an appointment. (Employee Y Declaration, pg. 3, para. 16; and Exhibit 5.)

Plaintiff’s discipline was more severe than that received by male supervisors for the same purported violation. (Employee W’s Declaration., pg. 2, para. 7-9; Plaintiff’s Depo., 34:16-24.)

 

Rule of Court  3.1350(f) requires that “an opposing party who contends that a fact is disputed must state, on the right side of the page directly opposite the fact in dispute, the nature of the dispute and describe the evidence that supports the position that the fact is controverted. That evidence must be supported by citation to exhibit, title, page, and line numbers in the evidence submitted.”  The sample above reflects that the opposing party was not content to just cite to one or two pieces of evidence to contravene the moving party’s UMF.  Instead, multiple witnesses and evidentiary sources were cited.  It just makes it so much easier for the court to rule in your favor if multiple witnesses and multiple documents support your position.  Citing evidence such as admissions from the moving party or the moving party’s own witnesses is also especially helpful in this regard.

Lastly, it is important to provide actual quotations whenever possible.  Judges are routinely frustrated with attorneys who incorrectly summarize or spin evidence.  By providing concise quotations that directly address the pertinent issue, you bolster your side’s credibility and also make it much easier for the court to rule in your favor.  So, the above sample actually quotes the company handbook on the policy at issue, and also provides the exact testimony the janitor gave in his deposition.  This technique is much more effective than just summarizing that evidence and hoping the judge will actually cross-reference the multitude of citations presented.

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California Law Blog addresses different legal issues confronting legal practitioners and clients. Email at henninglawfirm@hotmail.com with any questions or comments.

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