Material Facts in a Motion for Summary Judgment

What is a “material fact” for the purposes of a motion for summary judgment or summary adjudication?  Code of Civil Procedure Section 437c(c) sets forth that a 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.”  (Emphasis supplied.)  However, a material fact is not actually defined in the Code of Civil Procedure.  Case law is not especially helpful either.  One decision established that a material fact must relate to a claim or defense at issue and “be essential to the judgment in some way.” Riverside Community Facilities Dist. v. Bainbridge 17, 77 Cal.App.4th 644, 653 (1999).  Not an especially helpful definition.

The lack of a clear understanding of what a material fact is can be troublesome because a trial court has no discretion to do anything other than deny a motion for summary judgment or summary adjudication if a material fact is disputed.  Zavala v. Arce, 58 Cal.App.4th 915, 925, fn 8 (1997); Saldana v. Globe-Weis Systems Co., 233 Cal.App.3d 1505, 1511-1512 (1991).  A moving party concedes a fact is a “material fact” by putting it in Separate Statement, so if it is successfully disputed, the opposing party should prevail on that cause of action or issue. Nazir v. United Airlines, 178 Cal.App.4th 243, 252 (2009).  The lesson here is that the tactic of setting forth dozens of material facts in a motion for summary judgment or summary adjudication may be ill-advised because if even one of them is successfully disputed, the motion may be denied.

Although it may be unclear as to what a material fact actually is, one should understand what a material fact is not.  Percipient facts and evidence of facts are not material facts.  For example, “Plaintiff testified that . . .” is not a material fact.  Reeves v. Safeway, 121 Cal.App.4th 95, 106 (2004). Similarly, “Plaintiff heard . . .” is a perception, not a material fact.  (Id.)  The Court of Appeal articulated these distinctions in the Reeves case, set forth in pertinent part:

At the threshold we observe that defendant has made our task–and that of the trial court–considerably more burdensome by its failure to comply with the requirement of Code of Civil Procedure section 437c, subdivision (b)(1), that the moving party set forth “plainly and concisely all material facts which the moving party contends are undisputed.” (Italics added.) Instead of stating clearly those material facts which actually are without substantial controversy, defendant offers a number of obliquely stated “facts” that are material only to the extent they are controverted, and uncontroverted only to the extent they are immaterial. For instance, defendant asserts various “undisputed facts” in terms not of relevant events but of what a witness has said about events, e.g., two Safeway employees “stated that Plaintiff followed them out of the store, telling them that he had moved Sandy Juarez out of the way by lightly/gently pushing her aside.” It seems indisputably true that Brian Sparks so testified in deposition, though there is no competent evidence of such a report by the other worker, Barbara Flagen-Spicher. (See fn. 9, post.) But what Sparks (or for that matter Flagen-Spicher) might have said in deposition is not, as such, a “material fact.” It is of interest only as evidence of a material fact, e.g., that plaintiff made a damaging admission about his confrontation with Juarez. That “fact” is squarely controverted by plaintiff’s declaration that he made no such statement. We emphatically condemn Safeway’s attempt to circumvent that conflict by stating the supposed “fact” in an attributive form.

This stratagem takes an arguably even worse turn in Safeway’s assertion of “facts” in the form of supposed perceptions by witnesses. Thus it is said to be undisputed that “Brian Sparks overheard” something, and that “Sandy Juarez and Staci Siaris both witnessed” something. Ordinarily, however, the perceptions of witnesses are simply not “material facts,” as that term is used in the summary judgment statute. The relevant question is whether the underlying facts–the events or conditions witnesses say they perceived–are established without substantial controversy. Defendant merely clouds the inquiry into that question by formulating the operative facts in the intermediate form of a witness’s perceptions or statements.

We believe trial courts have the inherent power to strike proposed “undisputed facts” that fail to comply with the statutory requirements and that are formulated so as to impede rather than aid an orderly determination whether the case presents triable material issues of fact. If such an order leaves the required separate statement insufficient to support the motion, the court is justified in denying the motion on that basis. (See Sec. 437c, subd. (b)(1).)

Reeves v. Safeway, 121 Cal.App.4th 95, 105-106 (2004)

Anyone making or opposing a motion for summary judgment or summary adjudication should review the “material facts” set forth in the Separate Statement with the foregoing in mind.

Reply Separate Statements Are Improper in a Motion for Summary Judgment

As part of the Motion for Summary Judgment and/or Motion for Summary Adjudication filing, attorneys sometimes submit a document titled “Reply Separate Statement.”  In the Reply Separate Statement, the moving attorneys will raise objections to the evidence cited in the opposing party’s Separate Statement and also cite to additional evidence to refute the opposing party’s’s evidence. California Rule of Court 3.1113 limits a Reply Memorandum of Points & Authorities to ten pages, so the Reply Separate Statement is often used as an end-run around this page limitation.

The problem with filing a Reply Separate Statement is that no such pleading is allowed under the Code of Civil Procedure, California Rules of Court, or any other authority.  The Court of Appeal specifically castigated the San Francisco office of Littler Mendelson for filing a Reply Separate Statement in Nazir v. United Airlines, 178 Cal. App. 4th 243, 252 (2009).  In a scathing opinion, the Court of Appeal, after addressing numerous problems in the pleadings filed by Littler Mendelson, pointed out the following:  “The deficiencies carried over to the reply papers, which included a 297-page reply separate statement. There is no provision in the statute for this.”  Nazir, 252.  However, this reprimand has still not stopped Littler Mendelson or other attorneys from continuing to file this prohibited pleading.

Not known for overstatement, the Court of Appeal found this to be “a case involving what may well be the most oppressive motion ever presented to a superior court.”  Nazir, 248.  The opinion then set forth: “Defendants filed a motion for summary judgment/summary adjudication, seeking adjudication of 44 issues, most of which were not proper subjects of adjudication.  Defendants’ separate statement was 196 pages long, setting forth hundreds of facts, many of them not material—as defendants’ own papers conceded.  And the moving papers concluded with a request for judicial notice of 174 pages.  All told, defendants’ moving papers were 1056 pages.”  Nazir, 249.

Twice in the opinion, the Court of Appeal emphasized that a “Reply Separate Statement” is not allowed:  “Defendants’ reply included, and properly, their response to plaintiff’s additional disputed facts.  Defendants’ reply also included, not so properly, a 297-page “Reply Separate Statement” and 153 pages of “Exhibits and Evidence in Support of Defendants’ Reply.”  And the reply culminated with 324 pages of evidentiary objections, consisting of 764 specific objections, 325 of which were directed to portions of plaintiff’s declaration, many of which objections were frivolous.  In all, defendants filed 1,150 pages of reply.” Nazir, 249.  In the Nazir opinion, the Court of Appeal also observed that the 153 pages of “Exhibits and Evidence in Support of Reply” was improper because “[n]o such [new] evidence is generally allowed.  Nazir, 252.

The Supreme Court has held that an attorney is not entitled to recover hours which are excessive, redundant, or otherwise unnecessary. Hensley v. Eckerhart, 461 U.S. 424, 434 (1983).  Rule 4-200(A) of the California Rules of Professional Conduct mandates that “[a] member shall not enter into an agreement for, charge, or collect an illegal or unconscionable fee.”  It seems that a disgruntled client would have legitimate grounds to claim that it was charged an unconscionable fee if a law firm charged it for a pleading that has been specifically prohibited by the Court of Appeal.

So, as a litigant or attorney, what does one do when confronted with a “Reply Separate Statement”?  You usually are forewarned when defense counsel requests an electronic version of your client’s Response to the Moving Party’s Separate Statement.  California Rule of Court  3.1350(i)  provides that the a party must provide an electronic version of its Separate Statement within three days of the request.  However, I would argue that Rule 3.1350(i) does not mandate that a party opposing an MSJ/MSA provide an electronic version to the moving party because Rule 3.1350 doesn’t even mention or allow for, just as Nazir confirmed, a Reply Separate Statement.   So, simply refuse to provide an electronic version and cite to the Nazir case.  Also, point out that by filing a Reply Separate Statement they are intentionally evading the ten-page limit for a Memorandum of Points & Authorities.  For good measure, it doesn’t hurt to point out in your refusal letter that the attorneys are being unethical in overbilling their clients for “unnecessary” work on a prohibited pleading.

If the moving party still insists upon filing a Reply Separate Statement, file a written objection with the court citing these same authorities and objections.  Notwithstanding, out of an abundance of caution, you should still address and refute all of the points and evidence cited to in the Reply Separate Statement.  Until judges crack down on this behavior with meaningful consequences, it is still going to continue unchecked.