Summary judgment motion by plaintiff in California pursuant to Code of Civil Procedure section 437c

A summary judgment motion by a plaintiff in California pursuant to Code of Civil Procedure section 437c is the topic of this blog post.   This motion can also be filed by a cross-complainant as well as a plaintiff.

Code of Civil Procedure section 437c(a) states in pertinent part that, “Any party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” 

There are numerous requirements for motions for summary judgment.  Any party considering moving for summary judgment should carefully read the entire text of Code of Civil Procedure section 437c to ensure that they have complied with all applicable requirements.

For instance, the party moving for summary judgment must wait until at least 60 days have passed since the general appearance of the party against whom the motion is directed unless the Court orders otherwise.  And a minimum of 75 calendar day’s notice of the hearing must be given. If notice of the motion is given by regular mail at least 5 calendar days must be added to the notice period. Note that there is NO statutory procedure for shortening the notice period for a motion for summary judgment.

And the party moving for summary judgment must submit a separate statement of undisputed material facts with the motion.

The advantage of filing a motion for summary judgment is that if the Court is convinced that there are no triable issues of material facts it must grant the motion as Code of Civil Procedure § 437c(c) states in pertinent part that, “The 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.”

Code of Civil Procedure § 437c(p)(1) states that for purposes of motions for summary judgment and summary adjudication,

“(1) A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on that cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The defendant or cross-defendant may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.”

The advantage of filing a motion for summary judgment is that if forces the party opposing the motion to produce admissible evidence showing that a triable issue of material fact exists and they cannot merely rely on the allegations or denials of their pleadings but must set forth specific facts showing that a triable issue of material fact exists as to that cause of action or a defense. This is particularly useful in cases where the defendant has filed an answer containing numerous “boilerplate” affirmative defenses and whose discovery responses are equally vague. 

Attorneys or parties in California who would like to view a portion of a sample 19 page motion for summary judgment by a plaintiff in California containing brief instructions, a table and contents and table of authorities with an opening summary of argument, memorandum of points and authorities with citations to case law and statutory authority, separate statement of undisputed material facts, sample declaration, proposed order and proof of service sold by the author can use the link shown below.

Sample motion for summary judgment by plaintiff for California

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.


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DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.