Personal Injury, Probate, Employment, & Complex Litigation


Motion For Summary Judgment

A Motion for Summary Judgment is one of the most powerful tools in a lawyer’s toolbox. Essentially, it is a demurrer, but it is done at the end of the proceeding instead of at the beginning.

In a demurrer, you tell the court that assuming everything someone said in their complaint was true, it would still not entitle them to recovery, therefore there is no triable issue and the case should be dismissed. Motions for Summary Judgment are controlled by Code of Civil Procedure section 437c. A Motion for Summary Judgment is telling the court that after all of the pre-litigation discovery process, it has become clear that there is no triable as to a material fact and therefore the case should be dismissed.

But what does it mean that there is “no triable issue of material fact”? Essentially, every claim you make has different elements you must satisfy in order to be able to recover. For negligence you have to show:

  1. Duty;
  2. Breach of Duty;
  3. Causation; and
  4. Damages

Let’s say you are in a car accident and as a result of that accident you file a lawsuit against the other driver. Through the discovery process you are able to show that the other driving was texting on their phone, when they rear-ended you and caused the accident. That’s great, you just satisfied 3 of the 4 elements! The problem is that you weren’t injured and your car was damaged. That’s a problem because you are missing one of the required 4 elements.

In that situation the Defendant could file a motion for summary judgment to dismiss your case because there is no evidence to support the damages element of your negligence claim. And in the above described circumstance, they would likely win. The reason for this is because you have no evidence to support an essential element, therefore there is no triable issue of material fact.

As far as the nuts and bolts of a Motion for Summary Judgment, they must be served on the opposition 75 days before the hearing for personal service and 80 days before the hearing for service by mail. The opposition to the Motion for Summary Judgment is due 14 days prior to the hearing. Part of the reason why a Motion for Summary Judgment is such a powerful tool is because you have to have all of your evidence organized and ready to be used to both draft one and to respond to one. If not, you run the possibility of either not dismissing a case that should be or having a case dismissed that shouldn’t be depending on which side you are arguing.

Motions for Summary Judgment are known to give experienced attorneys nightmares (and often pushes the attorney to more aggressively seek a settlement) and so it is recommended to not take on such a daunting task without representation.