Skipping technicalities really can result in summary judgment

There is a general precept in the law that in disposing cases, form should not win over substance. Two recent appellate cases show that when it comes to summary judgments, however, that precept may not apply as much anymore. All parties (but particularly plaintiffs) should beware that failing to follow the technical rules of pleading and of prosecuting/defending summary judgment motions can doom their case.

In Rush v. White Corporation, 13 Cal. App. 5th 1086 (2017), five plaintiffs sued some seven defendants for fraud and negligence over the development of several "high end settlement cabins" in Montana. Four of the defendants moved for summary judgment on several separate and independent grounds. The number of parties, the complexity of the various real estate transactions and the varied financial details of the individual plaintiff's situations led to a tome-like statement of undisputed material facts that ran to 49 pages and 338 facts. Not to be undone, the plaintiffs' responsive separate statement ballooned to 155 pages, and didn't comport with the requirements of the Rules of Court in terms of the supporting record cites. Defendants noted this technical violation of the rules in their reply brief, and after the motion hearing, the trial court ordered plaintiffs to address the issue. When plaintiffs' response was still not proper, the court issued an "order mandating compliance with California Rule of Court 3.1350," particularly demanding "pinpoint" citations to the record. Plaintiffs' supplemental statement still failed to measure up, and the trial court granted summary judgment on that basis alone, without reaching the merits.

Indeed, Rule 3.1350 lays out specific requirements for summary judgment motions under CCP Section 437c, including the form of supporting and responding separate statements. It goes so far as to include a sample of the format that should be followed for those statements. Other rules in this chapter spell out the timing and format for objecting to evidence (see Rules 3.1352 and 3.1354).

The Court of Appeal affirmed, emphasizing that the trial court's decision would be reviewed under the abuse of discretion standard (as opposed to the de novo standard usually applied to summary judgment merits rulings). Indeed, the court chided appellants for only mentioning the word "discretion" three times in their "76-page, 13,923-word brief." It went on to explain that an abuse of discretion only occurs if the ruling falls outside the bounds of reason, or is arbitrary, whimsical or capricious. No such abuse could exist here, where the trial court had given plaintiffs multiple chances and even postponed the summary judgment hearing, so they could get their separate statement right. Thus, the trial court did not have to reach the merits of the motion, but could dismiss on the procedural infirmities alone.

Technicalities also doomed the plaintiffs in Jacobs v. Coldwell Banker Residential Brokerage Co., 2017 WL 3473822 (2017). There, while husband plaintiff was viewing a house for sale, he stepped onto the diving board of the empty swimming pool to look over the fence, and was hurt when the board collapsed and he fell into the pool. Plaintiffs' complaint was based on the allegedly negligent condition of the diving board, and their discovery responses confirmed that the theory of their case was that the agent should have known about the negligent condition of the board and/or warned plaintiffs about it. Defendant filed a summary judgment motion based on the fact that it had no constructive or actual notice of any dangerous condition regarding the board. In opposition, plaintiff now argued a new theory -- that the empty pool was a dangerous condition. In reply, defendant argued that plaintiffs could not overcome summary judgment based on an unpled theory of liability, but also introduced new evidence and arguments to counter the pool liability theory. The trial court granted summary judgment, finding no notice of the diving board's condition, and agreeing that plaintiffs could not rely on their new theory about the empty swimming pool.

The Court of Appeal affirmed. The court explained that the pleadings "set the boundaries of the issues" that can be resolved at summary judgment, and a moving party is not required to go beyond the allegations in the complaint to address newly asserted liability theories, unless plaintiff seeks and is given leave to amend the complaint. The complaint here, even generously interpreted, asserted negligence solely based on the condition of the diving board (not the pool), and plaintiffs' interrogatory responses echoed this. Moreover, plaintiffs did not seek to amend their complaint prior to the summary judgment hearing. Thus, the trial court was correct in refusing to deny summary judgment based on the unpled empty-pool theory of liability -- stated differently, the trial court was correct to limit plaintiffs to the liability theory they had pled.

In illustrative contrast to Rush, the Jacobs Court of Appeal held that the trial court did not abuse its discretion by considering the new arguments and evidence that defendant proffered in its reply brief. Although new evidence/arguments are generally not allowed in reply, a court can allow it if the opposing party has notice and a chance to respond to the new material. Here, plaintiffs had notice when they received the reply brief, and could have asked the trial court for permission to file a sur-reply or responsive evidence, but chose not to do so. In addition, the fact that the new evidence in reply was necessitated by plaintiffs' liability theory pivot supported the trial court's justification (and discretion) for allowing reply evidence in.

The lessons from Rush and Jacobs are fairly obvious, but nonetheless important:

• All parties, but particularly plaintiffs, should make sure that they follow all the technical rules for summary judgments. These include the format of separate statements, the length of briefs, the format and substance of declarations, the format and timeliness of evidentiary objections, etc. Litigators are wise to carefully review Code of Civil Procedure Section 437c, Rules of Court rule 3.1350 et seq., and any "local" rules of the court or judge regarding summary judgment motions.

• Parties should not assume that the appellate courts will bail them out if a "strict" trial judge insists on rigorous adherence to these procedural rules, and grants (or denies) summary judgment simply based on that. Since a trial court's rulings on such procedural rules are usually reviewed under an abuse of discretion standard, it will be an uphill battle to convince an appellate court that the trial judge erred. A parties' appellate chances become even dimmer, if the trial court gave that party a chance to cure the procedural error.

• Parties should take every opportunity to correct any procedural mistake at the trial court level, whether that be by seeking to continue the summary judgment hearing, asking for a chance to file supplemental briefs or evidence, or seeking leave to amend their pleadings to assert new liability theories or defenses.

• Parties should carefully analyze their case and plot out what their theories of liability or defense are before they draft their complaints or answers. Sloppy or conclusory pleading could come back to haunt them at summary judgment time.

Despite the drastic nature of the summary judgment remedy and the courts' concomitant reluctance to grant that remedy based solely on procedural defalcations, the tide in favor of technicalities seems to be turning. Courts seem more willing to dismiss cases on technical, procedure grounds at summary judgment. Practitioners should heed this change in the climate.