Summary judgment: no longer a disfavored remedy

On first glance, the California Supreme Court's recent decision in Perry v. Bakewell Hawthorne, LLC, 2017 DJDAR 1597, might seem to be a simple opinion about the exclusion of undisclosed expert witnesses. But in fact, it may end up being cited more for what it says about summary judgment than for what it says about expert witness disclosure.

Before we get to the opinion in Perry, a brief review of summary judgment law in California.

Before the 1992-1993 amendments to the summary judgment statute, summary judgment law in California was more restrictive than it is today. To prevail on a motion for summary judgment under the prior version of the statute a defendant had to "conclusively negate a necessary element of the plaintiff's case, and demonstrate that under no hypothesis is there a material issue of fact that requires the process of a trial." Molko v. Holy Spirit Assn., 46 Cal. 3d 1092, 1107 (1988). In contrast to the federal standard under Rule 56 of the Federal Rules of Civil Procedure, California had no burden-shifting framework requiring the opposing party to come forward with evidence to defeat summary judgment.

This restrictive approach to summary judgment extended to courts' attitude toward the procedure. Summary judgment was viewed as a drastic, disfavored remedy that should "be used with caution, so that it does not become a substitute for trial." Id.

This began to change, however, when the Legislature passed amendments to the summary judgment statute in 1992 and 1993.

These amendments dramatically liberalized summary judgment law in California by bringing it more in line with its federal counterpart. Now, once the moving party meets his or her initial burden, the burden shifts to the opposing party to "set forth the specific facts showing that a triable issue of material fact exists." Cal. Code Civ. Proc., Section 437c(p)(1)-(2).

Courts' general attitude toward summary judgment also changed. Rather than viewing summary judgment as a disfavored procedural shortcut, courts began regarding it as an important mechanism for weeding out meritless lawsuits which, if summary judgment were not granted, would eventually result in a nonsuit or directed verdict.

Still, some courts continued to cite pre-1992 authority and describe summary judgment as a "drastic procedure" that "should be used cautiously so that it is not a substitute for a trial on the merits." E.g., Leep v. American Ship Management, 126 Cal. App. 4th 1028, 1036 (2005).

Until now, the high court has not weighed in. Perry changes that.

The California Supreme Court granted review in Perry to decide whether California Code of Civil Procedure Section 2034.300 - a rule that requires exclusion of undesignated experts under certain circumstances - applies at the summary judgment stage. In a unanimous opinion authored by Justice Carol Corrigan, the court held that it does.

In so holding, the court overruled its earlier decision in Mann v. Cracchiolo, 38 Cal. 3d 18 (1985), and disapproved a decision by the court of appeal in Kennedy v. Modesto City Hospital, 221 Cal. App. 3d 575 (1990).

Both Mann and Kennedy reasoned that the party opposing summary judgment might be able to avoid the consequences of a failure to designate if certain statutory conditions are met and the trial court grants leave to submit a tardy designation.

The high court disagreed, reasoning that there is no reason why a party cannot seek relief from a failure to designate an expert while a summary judgment motion is pending. Accordingly, unless the trial court grants relief, the court explained, the declaration must be excluded under Section 2034.300. The court further clarified that "admissible" evidence under the summary judgment statute means admissible "at trial." Thus, if an expert witness would be precluded under Section 2034.300 from testifying at trial, the declaration of such an expert does not set forth admissible evidence as required by the summary judgment statute and therefore cannot be used to defeat summary judgment. See Cal. Code Civ. Proc., Section 437c(c)-(d).

Notably, in addition to concluding that Mann and Kennedy were incorrectly reasoned, the court also observed that Mann and Kennedy "reflect the more restrictive approach to summary judgment prevailing when they were decided." In particular, the court disapproved Mann's statement that summary judgment "is drastic and should be used with caution," and Kennedy's statement that the purpose of summary judgment is "to stop facially meritorious cases at the summary judgment stage by reason of a procedural bar which at trial may be overcome."

These observations by the high court are significant. Before Perry, some lower courts noted a more favorable attitude toward summary judgment following the 1992 and 1993 amendments, yet others maintained a decidedly unfavorable view toward summary judgment. Perry makes clear that pre-1992 authority to the effect that summary judgment is drastic and disfavored is out of step with the modern view of summary judgment in California.

What remains to be seen is whether the decision will have any impact on other lower court precedents. For example, some courts have held that expert declarations in opposition to summary judgment need not be as detailed as expert declarations in support of summary judgment because "[t]he rule that a trial court must liberally construe the evidence submitted in opposition to a summary judgment motion applies in ruling on ... the admissibility of expert testimony." Garrett v. Howmedica Osteonics Corp., 214 Cal. App. 4th 173, 189 (2013). But Perry states that summary judgment declarations must set forth evidence that will be "admissible at trial," which may call into question Garrett's suggestion that the standard of admissibility of expert testimony is relaxed at the summary judgment stage.

Whatever its impact going forward, Perry is significant because it confirms that summary judgment is no longer a disfavored remedy, but rather "'a particularly suitable means to test the sufficiency' of the plaintiff's or defendant's case."